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58 FLRA No. 108
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
April 10, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Arvid Anderson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.
The grievance alleged that the grievant performed higher graded duties without compensation. The Arbitrator found that the grievance involved a classification matter and thus dismissed it for lack of jurisdiction. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Agency has employed the grievant as a WG-07 Painter since September 1998. In February 2001, he filed a grievance alleging that the Agency violated the guidelines set forth in Article 17 of the parties' collective bargaining agreement regarding Position Classification. Specifically, the grievant claimed that his position was improperly classified as to the grade and accuracy of the duties assigned because he was not being supervised as required by his position description. The grievance further alleged that the Agency violated Section 13.01 of the agreement by failing to temporarily [ v58 p454 ] promote the grievant on the 31st day of his assignment to a WG-09 position. [n1] In terms of a remedy, the grievant requested that the Agency promote him immediately to a WG-09 Painter position and grant him backpay with interest.
After the parties could not resolve the matter, they submitted it to arbitration. At the hearing, the grievant testified that he had performed similar duties for the Department of the Navy and had been classified at the WG-09 level there. The Union requested that the Arbitrator order the Agency to temporarily promote the grievant to the WG-09 level for the period from 1998 until such time as he is no longer performing the duties of a higher-graded position. The Agency argued that the grievance involved a classification matter and that the grievance, therefore, was not arbitrable.
The Arbitrator found that the grievance involved a classification matter and that he was thus precluded from ruling on the issue by 5 U.S.C. § 7121(c)(5). In this connection, he found that the grievant had worked in the same classification since his hire in 1998. Further, the Arbitrator noted that the original grievance actually contended that the grievant's position was improperly classified as to the grade and accuracy of duties assigned. Finally, he stated that "[t]he requested remedy requests that [the grievant] shall be promoted immediately inferring a permanent promotion, which is hardly a remedy for a temporary position." Award at 5.
III. Union's Exceptions
The Union argues that the award is contrary to § 7121(c)(5) of the Statute. The Union asserts that the Authority has consistently found that provisions which permit employees to receive temporary promotions when they are assigned to perform the duties of higher-graded positions to be negotiable and enforceable in arbitration proceedings.
The Union maintains that the grievance claims that the grievant is entitled to a temporary promotion under Section 13.01 of the agreement because of his performance of higher graded duties without compensation. The Union argues that because the grievance does not claim that the grievant's position is improperly classified, § 7121(c)(5) does not apply.
The Union also claims that the award is contrary to Agency rules and regulations and that it fails to draw its essence from the agreement.
IV. Analysis and Conclusions
The Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Under § 7121(c)(5) of the Statute, a grievance concerning "the classification of any position which does not result in the reduction of grade or pay of an employee" is removed from the scope of the negotiated grievance procedure. The Authority has construed the term "classification" in § 7121(c)(5) as involving "`the analysis and identification of a position and placing it in a class under the position-classification plan established by [the Office of Personnel Management] under chapter 51 of title 5, United States Code.'" Soc. Sec. Admin., Office of Hearings and Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999) (quoting 5 C.F.R. § 511.101(c)).
The Authority has distinguished between two situations in assessing whether a grievance concerns the classification of a position. Where the substance of a grievance concerns the grade level of the duties permanently assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of § 7121(c)(5) of the Statute. Soc. Sec. Admin., 31 FLRA 933, 936 (1988). However, where the substance of a grievance concerns whether the grievant is entitled to be compensated at a higher rate of pay by reason of having temporarily performed the established duties of a higher graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795, 801 (1991).
We find, in agreement with the Arbitrator, that the grievance concerns a classification matter within the meaning of § 7121(c)(5). The Arbitrator found that the grievant, in the original grievance, contended that his [ v58 p455 ] position was improperly classified and that he requested a permanent promotion. The Union has not shown that these findings, which support the conclusion that the grievance concerned a classification matter under § 7121(c)(5), are deficient.
The Union argues that because the relief requested by the grievant at the hearing was a temporary promotion under Section 13.01 of the parties' agreement, the grievance does not concern a classification matter. However, a claim for a temporary promotion will not preclude the Authority from concluding that the substance of the underlying grievance involves a classification matter. See LIUNA, Local 28, 56 FLRA 324, 326 n.2 (2000) (Chairman Cabaniss concurring). Therefore, we deny the Union's exceptions. [n2]
We deny the Union's exceptions.
Footnote # 1 for 58 FLRA No. 108 - Authority's Decision
When an employee is temporarily assigned to a higher graded position or the grade-controlling duties of a higher graded position for 30 consecutive calendar days, the employee shall be temporarily promoted into and receive the rate of pay of that position commencing on the 31st day. The employee must be qualified to fill the position on a permanent basis.
Union Attachment 5 at 46.
Footnote # 2 for 58 FLRA No. 108 - Authority's Decision
The Union has not set forth any arguments to support its claims that the award violates Agency regulations and fails to draw its essence from the agreement. Therefore, we dismiss those claims as bare assertions. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000).