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57 FLRA No. 48
U.S. Dept. of The Army, Dugway Proving Ground, Dugway, Utah and NAGE, Local R14-9 (Linn, Arbitrator), 0-AR-3245 (Decided June 1, 2001)
The grievant filed a grievance disputing her failure to be promoted and her performance appraisal. The Arbitrator ordered the grievant promoted and her appraisal raised. The Authority modified the effective date of the promotion.
The Authority concluded that the award in this case satisfied the two pronged test established by Authority precedent. The Authority noted that as interpreted and applied by the Arbitrator, Article 38 only precluded management from appraising employees in an unfair or inequitable manner and preserves management's right to fairly and equitably appraise employees. Therefore, its enforcement did not abrogate management's rights to direct employees and assign work, and it was enforceable consistent with § 7106(b)(3) of the Statute.
The Authority did not consider the issue of whether this matter concerned the classification of the grievant's position within the meaning of § 7121(c)(5) of the Statute. The Authority noted that under section 2429.5 of the Authority's Regulations, it will not consider issues that could have been, but were not, raised before the arbitrator. Here, there was no indication that this issued was raised before the Arbitrator.
The Agency argued that the award was contrary to 5 U.S.C. § 5106(a). The Authority noted that the Agency relied solely on the general language of 5 U.S.C. § 5106(a) as the basis for its claim that § 5106(a) precludes an arbitrator from ordering a grievant's position upgraded unless the arbitrator articulates a specific comparison of the duties performed by the grievant with the duties of the position description of a higher-graded position. However, the Authority 0 found no support in the language of § 5106(a) for the evidentiary and articulation requirements asserted by the Agency. The Authority noted that section 5106(a) merely prescribes that each position shall be placed in its appropriate class.
As to the award of back pay, the Authority noted that the Arbitrator specifically found that the Agency violated Article 38 of the parties' collective bargaining agreement. A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. Additionally, the Arbitrator essentially found that the personnel action directly resulted in the grievant's loss of pay, and the award satisfies these requirements of the Back Pay Act. However, the Arbitrator ordered the grievant promoted with backpay retroactive to May 15, 1994. The Arbitrator did not explain why the promotion was to be retroactive to May 1994 when he found that the grievant's position would not have been upgraded and she would not have been promoted until June 1996. Accordingly, the Authority modified the award to order the grievant promoted with backpay retroactive to June 15, 1996, the date that the Arbitrator found that the grievant's position would have been upgraded and the grievant promoted.
Lastly, the Authority found that the award was not contrary to § 7106(a). The Authority noted that it has repeatedly held that position descriptions are not themselves the assignment of work; they merely reflect the duties and responsibilities which an agency has decided to assign to a position. Similarly, the classification of a position reflects the analysis and identification of the position and its placement in a class under the position-classification plan established by the Office of Personnel Management under 5 U.S.C. chapter 51. As a consequence, position classification is not itself an assignment of work. The Authority further stated that nothing in the award precludes the Agency from prospectively determining the duties and responsibilities which the Agency has decided to assign to the grievant and her position and from taking whatever classification actions the Agency decides are necessary as a result of its determination on what duties are to be.