Overseas Education Association and Department of Defense Dependents Schools (Authority decision, July 24, 1984)

Final FLRA decision. The Authority set aside an arbitration award under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

A Defense Dependents Schools counselor sought the pay rate for a higher class of counselor, arguing that she performed equivalent duties. An arbitrator found her grievance arbitrable and awarded the higher pay rate. The agency argued that the grievance concerned position classification, which the labor statute excludes from this grievance procedure unless a reduction in grade or pay results. The Authority agreed that the award effectively reclassified the counselor for pay purposes. It set aside the award.

Decision snapshot

• Authority: Classification exclusion from grievance procedures under 5 U.S.C. § 7121(c)(5).
• Outcome: Arbitration award set aside.
• Key point: An award giving higher class pay based on the duties performed effectively reclassified the position for pay purposes.

Full text (FLRA public release)

[ v15 p358 ]

15:0358(77)AR

The decision of the Authority follows:

15 FLRA No. 77

OVERSEAS EDUCATION ASSOCIATION
Union

and

DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
Agency

Case No. O-AR-398

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Donald P. Goodman filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

According to the Arbitrator, the grievant, who was appointed to a Class I position and had never been a Class II, filed a grievance stating: "Since my duties as a Class I Counselor are equivalent of those of a Class II Counselor, my salary should also be equivalent of a Class II Counselor." In response to the claim that this grievance was precluded by section 7121(c)(5) of the Statute, /1/ the Arbitrator ruled that section 7121(c)(5) did not apply and that the grievance was arbitrable. In this respect the Arbitrator explained "that the real grievance is one of proper pay and not necessarily one having to do with position classification although there is an interconnection." On the merits of the grievance, the Arbitrator determined that the grievant is not receiving the proper rate of pay and ruled that she has been and is entitled to receive the pay rate for Class II Counselors. As to his award the Arbitrator stated that he "is not reclassifying the Grievant," but at the same time in denying attorney fees he stated that "(t)he effect of this award is to reclassify the Grievant for pay purposes as a Class II Guidance Counselor."

In its exception the Agency contends that the award is contrary to section 7121(c)(5) of the Statute. In support the Agency essentially argues that the grievance directly concerned the classification of the grievant's position and was not the result of her reduction-in-grade or pay.

The Authority finds that the award is contrary to section 7121(c)(5) of the Statute. It is clear that the substance of the grievance before the Arbitrator was whether the duties performed by the grievant should be compensated at the pay rate for the higher-grade position and that, in the Arbitrator's own words, the effect of his award is to reclassify the grievant for pay purposes at the higher-grade level. Therefore, because of this direct "interconnection" between the grievance and the reclassification "effect" of the award (to use the Arbitrator's own words), it must be found, despite the Arbitrator's assertion that he only awarded equal pay for equal work, that the grievance and the award concern the classification of a position within the meaning of section 7121(c)(5) precluding such matters from grievance and arbitration. See Federal Aviation Administration, Department of Transportation, Tampa, Florida and Federal Aviation Science and Technological Association, National Association of Government Employees, Tampa, Florida, 8 FLRA 532 (1982). Accordingly, the award by finding the grievance arbitrable and by resolving the grievance on the merits is deficient and is set aside.

Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ Section 7121(c)(5) provides:

(c) The preceding subsections of this section shall not apply with respect to any grievance concerning--

. . . .

(5) the classification of any position which does not result in the reduction in grade or pay of an employee.