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  31 FLRA NO. 73
31 FLRA 933 (1988)

Date:             23 MAR 1988
SOCIAL SECURITY ADMINISTRATION

                   Agency

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO

                   Union

Case No. 0-AR-1431

DECISION

     I. Statement of the Case

     This case is before the Authority on exceptions to the award
of Arbitrator Robert D. Moran filed by the Agency under section
7122(a) of the Federal Service Labor - Management Relations
Statute (the Statute) and part 2425 of the Authority's Rules and
Regulations.

     Three employees filed grievances, seeking backpay for a
period in which each allegedly had performed the work of a
higher-graded position. The Arbitrator ruled that the Agency had
violated the parties' collective bargaining agreement by failing
to grant the grievants temporary promotions for the relevant
periods. He directed the Agency to pay each grievant an amount
equal to the difference between the salary each had received and
the salary of the position whose work each had performed. The
Agency challenges the award as a violation of section 7121(c)(5)
of the Statute and of the Back Pay Act, 5 U.S.C. SS 5596.
Inasmuch as the grievance concerns the classification of a
position, we have determined that the Arbitrator's award must be
set aside.

     II. Background

     The grievants, all employed at grade GS-4 in the Agency's
Social Security Number Processing Branch, were reassigned to
perform a new function which the Agency was required to
carry out under a court order. The new tasks included verifying
that funds SSA was paying to representatives of Social Security
beneficiaries who were not legally competent to handle the funds
themselves were being properly administered by the
representatives. The grievants were among a group of employees
trained for the new-function without regard to grade level.
Grades GS-4 and GS-5 performed identical tasks, and no position
descriptions or other documents describing job content or
responsibility were prepared for the first 8 months of the
program. Award at 4.

     In addition to performing the regular duties involved in
verifying that the "representative payees" were utilizing the
Social Security benefits for the beneficiaries, some employees,
including the grievants, assumed additional responsibilities
known as "quality assurance." They became known as "QAs." Award
at 5. Grievants Lois Terry and Carole Young assumed the
responsibilities of QAs in early March 1984; grievant Phyllis
Lee, in November 1984. Position descriptions for the work they
were performing were not created until October 26, 1984. Award at
7-8. The position each grievant occupied was rated GS-4. Award at
8. The grievants also were responsible for "training, guiding,
and assisting" employees in grades higher than their own. Award
at 6. Although they remained GS-4s after positions in the
"Representative Payee" program were classified, all three
grievants continued to serve as QAs until their assignments to
the program ended on December 2, 1985. 1 Award at 13.

     The Union filed a grievance on behalf of each employee,
asserting that the Agency had violated Article 26, section 16 of
the parties' agreement by assigning each grievant temporarily to
a higher-graded position without giving her a temporary
promotion. 2 Award at 2. The Agency denied the grievances on the
grounds that the full range of duties of  the
higher-graded position had not been performed by any of the
grievants. Award at 2. The grievances were consolidated and
submitted to arbitration.

     III. Arbitrator's Award

     The Arbitrator found that when position descriptions were
created they did not reflect the actual work being performed but
rather reflected the grade level held by the person. The
Arbitrator determined that unrebutted testimony established that
each grievant continued to serve as a QA after the position
descriptions were established in October 1984. Award at 10. He
noted that the grievants provided guidance and advice to
employees at the GS-5 level and that management had "consciously
selected" the grievants for this role from a pool of employees
that included GS-5s. Award at 11. Moreover, the Agency later
created a GS-5 Lead Examining Technician position description,
which, the Arbitrator found, included "duties and
responsibilities identical" to those which the grievants had
performed before the position description was written, thus
"confirm(ing) the agency's own determination that it was at least
GS-5 level work." Award at 11.

     The Arbitrator concluded that the Agency had violated the
parties' agreement by failing to temporarily promote each
grievant to the GS-5 position. He found that grievants Terry and
Young had performed the work of Lead Examining Technician, GS-5,
from March 5, 1984, to December 2, 1985, and that grievant Lee
had performed the work of the GS-5 position from November 1,
1984, to December 2, 1985. The Arbitrator directed the Agency to
pay each grievant the difference between the salary of the GS-5
position and the GS-4 rate actually paid to her during the
relevant period. Award at 12-13.

     IV. Exceptions

     The Agency challenges the award of backpay on the grounds
that: (1) the position of Lead Examining Technician was not
established until October 1984, and that backpay and retroactive
promotion may be awarded only if the detail is to an
officially-classified position (Exceptions at 4-5); and (2) the
grievance concerns the classification of a position, which is
precluded from coverage under the negotiated grievance procedure,
under section 7121(c)(5) of the Statute, absent a reduction of
the employee's grade or pay. Exceptions at 5.

     V. Analysis and Conclusions

     We agree with the Agency that the award is deficient under
the Statute and must be set aside. The award of backpay to the
three grievants for the period from October 26, 1984, to December
2, 1985, is deficient because the-award is founded on the
Arbitrator's conclusion that the grievants should have been
classified at the GS-5 rather than the GS-4 level. The award,
therefore, concerns the classification of a position. Where the
substance of a grievance concerns the grade level of duties
assigned to and performed by the grievant, the grievance concerns
the classification of a position within the meaning of section
7121 (c) (5) of the Statute. Social Security Administration,
Baltimore, Maryland and American Federation of Government
Employees, Local 1923, Baltimore, Maryland, 20 FLRA  694, 695
(1985); Veterans Administration Medical Center, Tampa, Florida
and American Federation of Government Employees, Local 547, 19
FLRA  1177, 1178 (1985). Section 7121 (c) (5) precludes such a
grievance from coverage by a negotiated grievance procedure when
there has been no reduction in the grade or pay of the
employee.

     In this case, as in the cited cases, the grievances and the
award pertain to the appropriateness of the grade level of the
grievants in light of the duties assigned to and performed by
them. Furthermore, "the substance of the dispute (is) whether the
grievan(ts)' position(s) (were) properly classified." 19 FLRA  at
1179. Since the issue before the Arbitrator involved whether the
grievants were assigned to the appropriate grade level, the
matter was not arbitrable pursuant to Section 7121(c)(5) of the
Statute.

     The grievants were employed at the GS-4 level. They alleged
that they had performed the work of a GS-5 level. The Arbitrator
agreed and directed the Agency to reclassify the grievants for
the period involved. We conclude, therefore, that the grievances
and the award pertain to the classification of a position.
Section 7121(c)(5) of the Statute excludes such a matter from
coverage in grievance and arbitration proceedings. Accordingly,
the award is deficient under the Statute and must be set aside.

     Moreover, we note that the award of backpay to grievants
Terry and Young for the period of March 5 to October 26, 1984,
could not be sustained because the position of GS-5 Lead
Examining Technician was not established until October
26, 1984. No position descriptions for the program existed at the
time grievants Terry and Young assumed their duties. Award at 4.
Under the Back Pay Act, 5 U.S.C. SS 5596, a retroactive promotion
with backpay is not authorized for any period before the position
is actually classified. See American Federation of Government
Employees, Local 1960 and Department of the Navy, Development
Center, 26 FLRA  250, 254 (1987); Service Employees International
Union, Local 200 and Veterans Administration Medical Center, 10
FLRA  49, 50 (1982). See also United States v. Testan, 424 U.S.
392 (1976).

     VI. Decision

     For the foregoing reasons, the award is set aside.

     Issued, Washington, D.C.,March 23, 1988.

Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY


FOOTNOTES

     Footnote 1 All dates are set forth as found by the
Arbitrator, who noted that the specific dates during which the
grievants served as QAs were not provided in the grievants'
submissions. Award at 13 (footnote 5).

     Footnote 2 Article 26, section 16 of the parties' agreement
provides: When employees are temporarily assigned to a position
of a higher grade for a period in excess of 30  days, the
assignment shall be made via temporary promotion effective the
first day of the assignment.

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