American Federation of Government Employees, Local 987 (Union) and United States, Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia (Agency)

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58 FLRA No. 108







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