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56 FLRA No. 85
U.S. Department of the Army, Headquarters, III Corps and Fort Hood, Fort Hood, Texas and AFGE, Local 1920 (Britton, Arbitrator), 0-AR-3252 (Decided August 8, 2000)
The Arbitrator sustained a grievance over whether the grievant performed higher-graded duties, however he failed to issue a remedy. The Authority found the award ambiguous and remand it for clarification.
The Authority explained that grievances concerning the classification of any position which does not result in the reduction of grade or pay of an employee are removed from the scope of the negotiated grievance procedures under section 7121(c)(5) of the Statute. The term "classification" in section 7121(c)(5) has been construed 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. Here, the Authority found that the substance of the grievance concerned whether the grievant should be compensated at the higher pay level for performing higher-graded duties, and did not concern the classification of a position. Therefore, it was not deficient as contrary to section 7121(c)(5) of the Statute.
The Authority noted that an employee may be compensated for the temporary performance of the duties of a higher-graded position based on an agency regulation or collective bargaining provision making temporary promotions mandatory for details to higher-graded positions. However, where an arbitrator fails to identify a non-discretionary agency policy set forth in an agency regulation or a collective bargaining agreement provision that would entitle a grievant to back pay for performing the duties of a higher-graded position, there is no unjust or unwarranted personnel action which would entitle the grievant to an award of back pay under the Back Pay Act. Here, the Arbitrator sustained the grievance, finding that the Agency violated Article 39 of the parties' collective bargaining agreement by failing to pay the grievant at the supervisory rate of pay even though the grievant performed supervisory duties. However, the Arbitrator did not explicitly order the Agency to pay the grievant at that rate. The Authority further stated that it was unclear whether the Arbitrator's award required the Agency to compensate the grievant at the supervisory rate of pay for the performance of supervisory duties and, if so, whether the Arbitrator relied on some portion of Article 39 or other authority as mandating a temporary promotion and compensation at the supervisory level. The Authority explained that where it is unable to determine whether an arbitrator's award is deficient, the practice of the Authority is to remand the case to the parties for resubmission to the arbitrator.