Agricultural Research Service Eastern Regional Research Center and AFGE Local 1331 (Authority decision, October 22, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on exceptions to an arbitration award. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to an Authority order involving an arbitration award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

An arbitrator ordered a support scientist at the Agricultural Research Service promoted to GS-11 with backpay after finding that he performed duties at that level. The agency argued that the dispute concerned position classification. The Authority agreed because the grievance and award turned on the grade level available for the position and its assigned duties. Those classification matters were excluded from the negotiated grievance procedure, so the Authority set aside the award.

Decision snapshot

• Authority: Classification exclusion under 5 U.S.C. § 7121(c)(5).
• Outcome: Retroactive promotion and backpay award set aside.
• Key point: A dispute over the grade of a position's assigned duties cannot be resolved through negotiated grievance arbitration.

Full text (FLRA public release)

[ v20 p508 ]

20:0508(60)AR

The decision of the Authority follows:

20 FLRA No. 60

UNITED STATES DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
EASTERN REGIONAL RESEARCH CENTER
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION No. 1331, AFL-CIO
Union

Case No. 0-AR-930

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Alexander M. Freund filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

A grievance was filed and submitted to arbitration contending that the grievant, a support scientist, was entitled to have been permanently promoted noncompetitively to GS-11. Before the Arbitrator, the Activity primarily argued that the grievant was not entitled to a noncompetitive career promotion because, in accordance with the career ladder of support scientists, the full-performance level of the grievant's position is GS-9. The Activity further maintained that management had not by planned action upgraded his position by the assignment of additional duties and responsibilities. Contrary to the position of the Activity, the Arbitrator rejected that the full-performance level for support scientists was GS-9. Thus, the Arbitrator stated that to resolve the grievance, it was only necessary to determine whether the grievant had been performing at the GS-11 grade level at the time he requested to be promoted. Although the Arbitrator acknowledged that an audit of the grievant's position had not resulted in an official classification determination that the position was at the GS-11 level, he nevertheless determined that the grievant had advanced to the GS-11 level. Accordingly, as his award, the Arbitrator ordered the grievant promoted to GS-11 with backpay retroactive to December 1983.

As one of its exceptions the Agency contends that the award is deficient because it concerns the classification of positions. The Authority agrees.

In U.S. Equal Employment Opportunity Commission, Memphis District Office, Memphis, Tennessee and National Council of EEOC Locals, No. 216, American Federation of Government Employees, AFL-CIO, 18 FLRA No. 16(1985), the grievance essentially claimed a career-ladder promotion potential of GS-6 in a particular position and the award directed the grievant's promotion to GS-6 notwithstanding the Activity's determination that a grade level of GS-6 could not be supported as a matter of classification. Because the substance of both the grievance and the award concerned the grade level to which the grievant could receive a noncompetitive career promotion, the Authority found that both the grievance and the award concerned the classification of a position within the meaning of section 7121(c)(5) of the Statute precluding such matters from grievance and arbitration. Similarly, the Authority uniformly has held that where the substance of the 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 section 7121(c)(5). E.g., Veterans Administration Medical Center, Tampa, Florida and American Federation of Government Employees, Local 547, 19 FLRA No. 129(1985). In terms of this case, the essential nature of the grievance and the award concerned both the grade level to which the grievant as a support scientist could receive a noncompetitive career promotion and the grade level of the duties assigned to and performed by the grievant. Thus, under established precedent, the Authority finds that both the grievance and the award concern the classification of a position within the meaning of section 7121(c)(5) of the Statute precluding such matters from grievance and arbitration. See VA Medical Center, Tampa; EEOC, Memphis. Accordingly, the award is deficient and is set aside. /1/

Issued, Washington, D.C., October 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ In view of this decision, it is unnecessary that the Authority address the other exceptions to the award.