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59 FLRA No. 129
OF GOVERNMENT EMPLOYEES,
DEPARTMENT OF THE ARMY
ARMY MISSILE COMMAND, ARMY
COMMUNICATIONS COMMAND AGENCY
REDSTONE ARSENAL, ALABAMA
March 3, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Robert G. Williams 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 filed an opposition.
The grievance involves a claim that the grievant was not properly paid for her work. The Union excepts to the Arbitrator's award finding that the grievance concerns a classification matter. For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
Because of her skills and abilities, the grievant's supervisor indicated that if she would complete certain training, he would attempt to place her in a higher-graded position. Upon completion of the training, the grievant was assigned to a Logistics Support Assistant position, GS-7, with a contemplated progression, on a yearly basis, non-competitively, to a GS-9 and then a GS-11 position.
At the end of her year in the GS-7 position, the grievant sought an up-grade, but was told that the organizational subdivision in which she worked, THAAD, would not promote an employee in that manner. She then sought to return to the organizational subdivision, IMMC, from which she had been reassigned in order to obtain the up-grade to GS-9, but she was told that there were no positions available in that subdivision at GS-7 or GS-9. After a brief detail to yet another subdivision, EOD, the grievant returned to THAAD as a GS-7 Logistics Support Assistant, performing the same duties she was previously assigned.
Soon after her return to THAAD, she was assigned additional duties which were normally performed by GS-12 employees. A desk audit was then requested for the grievant's position, as well as others, and the result of that audit was a determination that her "`current job description accurately reflects the duties she is performing. The grade of GS-7 is supportable.'" Award at 9-10 (quoting the classification decision). According to the Arbitrator, the audit reflected the additional duties that had been assigned to the grievant. Specifically, the Arbitrator noted that six of the functions performed by the grievant were derived from four GS-12 positions.
A grievance was filed claiming that the grievant was not properly paid for her work. When the parties were unable to resolve the grievance, it was submitted to arbitration.
B. Arbitrator's Award
The Arbitrator framed the issue as follows:
Did the Agency violate applicable statutes, regulations or the Agreement by failing to properly pay the [g]rievant and, if so, what shall be the remedy?
Award at 2.
The Union cited cases in which arbitral awards of back pay for performance of higher-graded work were upheld by the Authority. The Union also referenced provisions of the parties' collective bargaining agreement requiring that any failure to comply with applicable laws and regulations governing merit promotion must be promptly rectified. [n1] The Union noted that the Back Pay Act provided that employees should be reimbursed for the "wrongful deprivation of pay." Award at 17. The Agency argued that the grievant was properly classified and not entitled to pay at a higher grade under the Back Pay Act, citing United States v. Testan, 424 U.S. 392 (1976) (Testan).
The Arbitrator reviewed the requirements of what he called the Federal "manning system." Award at 20. He noted that the Federal system is premised on a classification system in which job duties are described and then assigned to a job classification based on the application of specified criteria. He noted that the pay system is based on the job classification system. He stated further that the classification process is followed by a staffing [ v59 p714 ] process, whereby management determines the number of positions to be filled in a given classification, advertises for applicants, evaluates those applicants, and selects individuals to fill the positions. He indicated that the staffing process is governed by Office of Personnel Management regulations, which contain limited possibilities for noncompetitive promotion. He concluded that an understanding of the differences between the classification system and the staffing system were important to resolving the grievance.
In particular, the Arbitrator stated that when management assigns employees duties "beyond their position descriptions[,]" it is possible for the employee to seek a "reclassification" of the position and, if the position is upgraded, for management to fill that position with the incumbent employee. Award at 25. The Arbitrator also noted that it is possible for management to temporarily assign employees to higher-graded positions and, when that happens, under the Back Pay Act, employees are "entitled to the pay differential between [their] regular job and the higher[-]rated job." Id. at 25. The Arbitrator observed, however, that employees are not able to grieve a "wrongful refusal to reclassify a position" or to recover compensation for such a wrongful refusal under the Back Pay Act, citing Testan.
The Arbitrator noted that the parties' collective bargaining agreement "recognizes the difference between a reclassification claim and a transfer to a higher[-]rated position." [n2] Id. at 31-32. The Arbitrator also noted that the parties recognize that a reclassification dispute must be processed under the classification appeal regulations. He stated that the "threshold issue in cases such as this is to determine whether grievants are claiming their positions should be reclassified to a higher rate or are . . . claiming they have been transferred to a higher[-]rated position[.]" Id. at 32. He indicated that the former situation occurs through the "accretions of tasks from higher[-]rated jobs to lower rated jobs." Id. at 33. The latter occurs when management transfers employees to higher-rated positions. The different situations, he concluded, "must be distinguished . . . on the basis of management's intentions." Id.
According to the Arbitrator, the evidence in the case demonstrates that management was assigning higher-graded work to the grievant's position. Consequently, the Arbitrator found, "[h]er grievance is claiming pay as the result of a reclassification, not as a temporary promotion or detail to a higher[-]rated position." Id. at 36. He then concluded that the matter involved a failure to properly classify a position. Id. at 38. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is deficient because it is contrary to law, rule, regulation and the parties' collective bargaining agreement.
Specifically, the Union argues that the Arbitrator erred by finding that the grievance concerned "a classification appeal case instead of [a] gradual assumption of duties case." Exceptions at 2. According to the Union, under Army Regulation 690-300, chapter 335, "[a]n employee can be promoted non-competitively if he/she has gradually assumed duties and no other employee (at the same grade and series) could perform these duties." Id. The Union asserts that there is no dispute that the grievant was performing higher-graded duties. The Union claims that, because the Agency "failed to take an action to promote" the grievant, as required by AR 690-300, chapter 335, the grievant is entitled to compensation under the Back Pay Act. Id.
B. Agency's Opposition
According to the Agency, the Arbitrator found that "management permanently assigned the grievant higher[-]graded duties, but it did not reclassify her job to a higher grade." Opposition at 2. The Agency maintains that this lack of a non-competitive promotion through reclassification formed the basis of the grievance.
The Agency acknowledges that it "is possible to non-competitively promote employees because of the accretion of duties," but contends that determination of the grade level of the duties which employees are performing is a classification matter. Id. at 5. The Agency asserts that such determinations, like the one required by this case, are not grievable under § 7121(c)(5) of the Statute. The Agency states that AR 690-300, chapter 335 does not mandate non-competitive promotions based on an accretion of duties; rather, according to the Agency, in order for an employee to receive such a promotion, the employee's position would have to be reclassified. [n3]
IV. Analysis and Conclusions
The Union contends that the Arbitrator's award is contrary to law and regulation. As the Union's exception concerns whether the award is contrary to law and regulation, the Authority's review is 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 the standard of de novo review, the Authority assesses whether an arbitrator's [ v59 p715 ] legal conclusions are consistent with the applicable standard of law. See United States DoD, Dept's of the Army and the Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
Under § 7121(c)(5) of the Statute, grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" are precluded by law from coverage by a negotiated grievance procedure. 5 U.S.C. § 7121(c)(5). When the substance of a grievance concerns the grade level of the duties assigned to, and performed by, the grievant, the grievance concerns the classification of a position within the meaning of § 7121(c)(5). Local 2142, 58 FLRA at 417 (citing AFGE, Local 2142, 51 FLRA 1140, 1142 (1996); AFGE, Local 2025, 50 FLRA 39, 42 (1994). When the substance of a grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5).
The Union claims that the grievant is entitled to a permanent promotion based on an accretion of higher-graded duties to her existing position. We note, in addition, that the Arbitrator specifically found that the substance of the grievance in this case concerned the assignment of some higher-graded duties to the grievant and, thus, raised issues as to the appropriate grade level for her position, a classification matter. Given the Union's accretion of duties argument, and taking into account the Arbitrator's findings in that regard, we find that the Arbitrator's legal conclusion that the grievance is excluded from the grievance procedure as a matter of law is consistent with § 7121(c)(5) of the Statute. See Local 2142, 58 FLRA at 417. See also AFGE, Local 987, 52 FLRA 212, 215 (1996); United States Dep't of the Air Force, Air Education and Training Command, Randolph AFB, San Antonio, Tex., 49 FLRA 1387, 1389 (1994).
The Union attempts to distinguish this grievance from the precedent cited above by claiming that the grievance concerned a non-competitive promotion based on an accretion of higher-graded duties to the grievant's position. The Union's argument is unavailing. As the Authority made clear in Local 2142, discussing such a non-competitive promotion:
[i]n those circumstances, at least one condition precedent to a promotion is a classification determination upgrading the position. . . . The mere performance of additional duties is not sufficient in and of itself to warrant an upgrade.
Id. at 417 (citation omitted). Thus, even assuming that the grievant in this case was performing some higher-graded duties as a part of the work of her position, her remedy does not lie in a grievance, but, as the Arbitrator pointed out, in a classification appeal. [n4] In this regard, the Union does not demonstrate that AR 690-300, chapter 335 mandates a non-competitive promotion based on an accretion of duties.
Further, the Union states that the award is inconsistent with the parties' collective bargaining agreement, but provides no explanation of, or support for, that statement. Thus, if we were to construe that statement as an essence exception, see, e.g., NFFE, Local 1904, 56 FLRA 196, 199 (2000), such a bare assertion provides no basis for finding the award deficient. See, e.g., AFGE, Local 1749, 58 FLRA 459, 460 n.3 (2003).
The Union's exceptions are denied.
1. Article 24, Section 9, of the parties' collective bargaining agreement provides, in relevant part, as follows:
Failure to adhere strictly to all laws, regulations, and procedures related to the merit Promotion and related Placement Program must be rectified promptly. Corrective action may involve the employee who was erroneously promoted, the employee or employees who were not promoted or considered because of the violation, or the persons who caused or sanctioned the violations. It also may involve correction of Merit Promotion Program deficiencies. The nature and extent of actions to be taken in any case have to be determined on the basis of all the facts in the case, with due regard to the circumstances surrounding the violation, to the equitable and legal rights of the parties concerned and to the interest of the Government. . . .
2. Article 34, Section c. of the parties' collective bargaining agreement provides, in relevant part, as follows:
c. In the event the employee's dissatisfaction concerning the classification of his/her position cannot be informally resolved, he/she will be informed by the supervisor as to the appeal channels that are available to him/her as prescribed by classification appeal regulation and procedures . . . .
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It should be noted that, as the Arbitrator found, the Agency conducted a classification audit of the grievant's position and, as a result of that audit, the Agency determined that the grievant was performing GS-7 level work, even including the additional duties assigned to her. There is no indication in the record that the grievant appealed that classification determination to the Office of Personnel Management. See 5 C.F.R. §§ 511.603 and 604.