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 5 FLRA No. 11
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
 and
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 LOCAL 644
 Union
 
                                            Case No. 0-AR-41
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR JOHN W. MAY FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER INVOLVED A
 GRIEVANCE FILED BY THE UNION ALLEGING THAT THE GRIEVANT, A GS-7 SAFETY
 SPECIALIST, HAD BEEN PERFORMING WORK OF A HIGHER GRADE WITHOUT
 APPROPRIATE COMPENSATION IN VIOLATION OF ARTICLE 18 OF THE PARTIES'
 NEGOTIATED AGREEMENT WHICH PROVIDES FOR EQUAL PAY FOR EQUAL WORK.
 ULTIMATELY, THE GRIEVANCE AND A THRESHOLD ISSUE OF ITS ARBITRABILITY
 WERE SUBMITTED TO THE ARBITRATOR FOR HIS DETERMINATION.
 
    THE AGENCY CONTENDED BEFORE THE ARBITRATOR THAT THIS GRIEVANCE WAS
 IDENTICAL TO A PRIOR GRIEVANCE FILED BY THE GRIEVANT WHICH HAD BEEN
 FOUND TO BE NONGRIEVABLE AND NONARBITRABLE BECAUSE IT CONCERNED A
 CLASSIFICATION MATTER.  WITH REGARD TO THE AFOREMENTIONED, THE AGENCY
 MAINTAINED THIS GRIEVANCE WAS LIKEWISE NONGRIEVABLE AND NONARBITRABLE.
 THE ARBITRATOR NOTED THAT IN THE EARLIER GRIEVANCE THE GRIEVANT HAD
 REQUESTED AN AUDIT OF THE WORK HE WAS ASSIGNED AND WAS PERFORMING.  IN
 THE EARLIER GRIEVANCE, THE GRIEVANT HAD CLAIMED HE WAS ENTITLED TO
 RECLASSIFICATION OF HIS POSITION WITH BACKPAY.  AS TO THE GRIEVANCE
 BEFORE HIM, THE ARBITRATOR NOTED THAT ALTHOUGH IT WAS BASED ON THE SAME
 ALLEGATION THAT THE GRIEVANT WAS ASSIGNED AND WAS PERFORMING WORK OF A
 HIGHER GRADE LEVEL, THE GRIEVANT IN THIS LATER-FILED MATTER HAD NOT
 REQUESTED A REVIEW OF THE CLASSIFICATION STATUS OF HIS POSITION.
 INSTEAD, THERE WAS A CLAIM FOR BACKPAY ON THE BASIS THAT THE GRIEVANT
 HAD BEEN ASSIGNED AND HAD PERFORMED HIGHER-GRADE WORK FOR A SIGNIFICANT
 PERIOD OF TIME WHICH ENTITLED THE GRIEVANT TO BE PAID FOR THIS PERIOD AT
 THE RATE OF PAY OF THE HIGHER GRADE LEVEL.  THUS, THE ARBITRATOR VIEWED
 THIS GRIEVANCE AS PRESENTING THE ISSUE OF THE APPLICATION OF THE FACTUAL
 EVIDENCE TO ARTICLE 18 OF THE AGREEMENT AND NOT AS PRESENTING ANY ISSUE
 OF CLASSIFICATION.  CONSEQUENTLY, THE ARBITRATOR CONCLUDED THE GRIEVANCE
 BEFORE HIM WAS NOT IDENTICAL TO THE EARLIER GRIEVANCE AND ACCORDINGLY
 RULED THAT IT WAS ARBITRABLE.  HOWEVER, ON THE MERITS, HE FOUND NO
 VIOLATION OF THE AGREEMENT AND NO ENTITLEMENT TO BACKPAY AND THEREFORE
 HE DENIED THE GRIEVANCE.
 
    UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 5 CFR PART 2425, /2/ THE AGENCY FILED AN EXCEPTION ONLY TO
 THAT PORTION OF THE ARBITRATOR'S AWARD FINDING THE GRIEVANCE ARBITRABLE.
  THE UNION FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 AGENCY'S EXCEPTION, THAT PORTION OF THE ARBITRATOR'S AWARD IN DISPUTE IS
 DEFICIENT BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION, OR IS
 DEFICIENT ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
 LAW, SPECIFICALLY SECTION 7103(A)(14)(B) /3/ AND SECTION 7135(B) /4/ OF
 THE STATUTE.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY'S POSITION WITH
 RESPECT TO SECTION 7103 IS ESSENTIALLY THAT THIS GRIEVANCE CONCERNS A
 CLASSIFICATION MATTER WHICH UNDER THE STATUTE MUST BE RESOLVED BY MEANS
 OF A CLASSIFICATION APPEAL IN ACCORDANCE WITH CHAPTER 51 AND CHAPTER 53
 OF TITLE 5 OF THE UNITED STATES CODE.  WITH RESPECT TO SECTION 7135(B),
 THE AGENCY APPEARS TO BE ARGUING THAT THIS GRIEVANCE IS IDENTICAL TO THE
 EARLIER GRIEVANCE WHICH WAS FOUND TO BE NONARBITRABLE AND ASSERTEDLY
 THAT DECISION GOVERNS UNDER SECTION 7135(B) OF THE STATUTE.  THE AGENCY
 SIMILARLY ARGUES THAT THIS GRIEVANCE IS IDENTICAL TO THE EARLIER
 GRIEVANCE, THUS IT IS BARRED, BY MERGER WITH THE EARLIER GRIEVANCE, FROM
 RESOLUTION BY THE DOCTRINE OF RES JUDICATA.  FOR THESE REASONS THE
 AGENCY CLAIMS THAT THE ARBITRATOR'S FINDING THAT THE GRIEVANCE WAS
 ARBITRABLE IS DEFICIENT.
 
    THE AGENCY'S EXCEPTION THAT THIS AWARD OF ARBITRABILITY IS CONTRARY
 TO LAW STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN AWARD
 DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  HOWEVER, IN THIS
 CASE THE AGENCY DOES NOT DEMONSTRATE IN WHAT MANNER THE AWARD IS
 CONTRARY TO LAW.  THE AGENCY HAS PREMISED ITS EXCEPTION ON THE
 ASSERTIONS THAT THIS GRIEVANCE CONCERNS A CLASSIFICATION MATTER AND IS
 IDENTICAL TO AN EARLIER GRIEVANCE, THE RESOLUTION OF WHICH CONTROLS.
 HOWEVER, AS WAS NOTED, THE ARBITRATOR SPECIFICALLY CONCLUDED THAT THIS
 GRIEVANCE DID NOT CONCERN A CLASSIFICATION MATTER AND WAS NOT IDENTICAL
 TO THE EARLIER GRIEVANCE.  AS WAS ALSO NOTED, HE REASONED THAT ALTHOUGH
 THE ALLEGATION THAT THE GRIEVANT WAS PERFORMING HIGHER-GRADE WORK WAS
 THE SAME, THERE WAS NO REQUESTED REVIEW OF THE CLASSIFICATION OF THE
 GRIEVANT'S POSITION.  INSTEAD, THERE WAS A CLAIM FOR BACKPAY ON THE
 BASIS THAT THE GRIEVANT HAS PERFORMED A SIGNIFICANT PORTION OF HIGHER
 GRADE WORK FOR A PERIOD OF TIME WHICH ENTITLED HIM TO BE PAID FOR THIS
 PERIOD AT THE RATE OF PAY OF THE HIGHER GRADE LEVEL.  THUS, THE
 ARBITRATOR CONCLUDED THIS GRIEVANCE DID NOT CONCERN ANY MATTER OF
 CLASSIFICATION AND WAS NOT IDENTICAL TO THE EARLIER GRIEVANCE.  IN ITS
 EXCEPTION THE AGENCY HAS FAILED TO DEMONSTRATE THAT, CONTRARY TO THE
 ARBITRATOR'S FINDING AND AWARD, THIS GRIEVANCE CONCERNED A
 CLASSIFICATION MATTER WHICH IS NONGRIEVABLE AND NONARBITRABLE UNDER THE
 STATUTE.  ADDITIONALLY, THE AGENCY HAS FAILED TO DEMONSTRATE, CONTRARY
 TO THE ARBITRATOR'S SPECIFIC FINDING, THAT THE GRIEVANCES WERE IDENTICAL
 AND, FURTHER, IN WHAT MANNER THE RESOLUTION OF THE EARLIER GRIEVANCE IS
 RES JUDICATA AND CONTROLLING UNDER SECTION 7135(B) OF THE STATUTE.
 
    MOREOVER, TO THE EXTENT THESE ASSERTIONS ARE PREMISED ON THE
 GRIEVANCES BEING IDENTICAL, THEY CONSTITUTE DISAGREEMENT WITH THE
 ARBITRATOR'S FINDING OF FACT TO THE CONTRARY AND WITH HIS REASONING AND
 CONCLUSION THAT THE RESOLUTION OF THE EARLIER GRIEVANCE DID NOT CONTROL.
  SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL
 COUNCIL AND U.S. IMMIGRATION AND NATURALIZATION SERVICE, SOUTHERN
 REGION, DALLAS, TEXAS, 3 FLRA NO. 87(1980).  THEREFORE, THE AGENCY'S
 EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5
 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ ALTHOUGH THE AGENCY'S EXCEPTIONS WERE FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425(1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /3/ 5 U.S.C. 7103(A)(14)(B) PROVIDES:
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS, EXCEPT THAT SUCH
 
    TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
 
   *          *          *          *
 
 
    (B) RELATING TO THE CLASSIFICATION OF ANY POSITION(.)
 
    /4/ 5 U.S.C. 7135(B) PROVIDES:
 
    (B) POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED UNDER AND
 DECISIONS ISSUED UNDER EXECUTIVE ORDERS 11491, 11616, 11636, 11787, AND
 11838, OR UNDER ANY OTHER EXECUTIVE ORDER, AS IN EFFECT ON THE EFFECTIVE
 DATE OF THIS CHAPTER, SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL
 REVISED OR REVOKED BY THE PRESIDENT, OR UNLESS SUPERSEDED BY SPECIFIC
 PROVISIONS OF THIS CHAPTER OR BY REGULATIONS OR DECISIONS ISSUED
 PURSUANT TO THIS CHAPTER. 
 
 
 

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