File 2: Opinion of Member Wasserman

[ v55 p344 ]


Opinion of Member Wasserman concurring in part and dissenting in part:

      Contrary to the conclusions reached by my colleagues, it is my view that by assigning the grievant to the Safety Manager position and receiving the benefit of his work, the Agency head's agents waived the time-in-grade requirements set forth in 5 C.F.R. § 300.604, as permitted by 5 C.F.R. § 300.603(b)(7). More specifically, it is my view that an agency's waiver of the time-in-grade restrictions need not be express but, additionally, can be inferred from its actions.

      In this case, the Arbitrator found that the grievant's supervisor left her position as the Safety Manager, and in July, 1995, the grievant was designated to temporarily fill the position. The Arbitrator further found that the grievant was not a candidate for advancement and did not apply for the position. Finally, the Arbitrator's factual findings show that in November, 1995, the grievant received his career ladder promotion to a GS-7 and in March, 1996, he was returned to regular duties at the end of his temporary assignment. Thus, it is clear that at the time the Agency designated the grievant to serve as the Acting Safety Manager until a permanent replacement could be found, it was fully cognizant of his GS-5 status. In these circumstances, I conclude that the Agency effectively waived the time-in-grade requirements in order to avoid inequity to the grievant. [n1] 

      In addition, consistent with my view that the time-in-grade requirements were effectively waived, it is my view the specialized experience requirements established by the Agency were also waived. In this connection, I specifically note that the applicable vacancy announcement requires "one year of specialized experience equivalent to the next lower grade level . . . which provided the applicant with specific knowledge, skills and abilities in order to successfully perform the duties of the position." Exceptions, Attachment UE-6. However, the minimum qualification standards established by the Office of Personnel Management (OPM), and of which I take official notice, do not contain the "one year" requirement. Under Authority precedent, as set forth in Fort Dix, 49 FLRA at 736, an employee must meet the minimum qualification requirements for the position in order to be promoted. It is my understanding that the minimum qualification requirements to which our precedent refers, and which cannot be waived, are the minimum requirements established by OPM rather than the discretionary, additional requirements imposed by an agency. As such, I conclude that the Agency waived its own discretionary one year requirement by assigning the grievant to the Safety Manager position.

      Finally, I agree with my colleagues that the Arbitrator erred regarding the level of the grievant's promotion since the Safety Manager position is not classified as a GS-8. However, unlike my colleagues, it is my view that this aspect of the award is deficient because it is contrary to law. Although my colleagues view this aspect of the award as based on nonfact, I do not believe that a nonfact analysis provides the most appropriate disposition of the issue. I note that although the Agency argues that the award is based on nonfact, the case upon which it relies, American Federation of Government Employees, Local 1941 and U.S. Department of the Navy, U.S. Army Chemical and Military Police Centers and Fort McClellan, Fort McClellan, Alabama, 51 FLRA 998, 1000 (1996), fails to support its position. There, the agency argued that the award was based on nonfact because, in resolving the grievance, the arbitrator applied the wrong portion of an agency regulation. In rejecting this argument, the Authority concluded that the agency had failed to establish that the arbitrator's reliance on a provision of a regulation constituted a "fact" upon which the award could be found deficient.

      The record in this case shows that the reason the grievant could not be promoted to, or compensated at, the GS-8 level was because the position to which he was temporarily assigned was classified as a GS-7/9/11. That is, the grievant could not be compensated as a GS-8 because the Safety Manager position was in a line of work that was properly classified at 2-grade intervals. To compensate the grievant at a level for which the position was not classified would violate the Classification Act, 5 U.S.C. § 5101 et. seq. See American Federation of Government Employees, Local 1960 and Department of the Navy Development Center, 26 FLRA 250, 254 (1987) (implicitly finding that back pay cannot be authorized for any position that is not classified); United States v.Testan, 424 U.S. 392 (1976) (retroactive promotion with back pay is not authorized for any period before a position is actually classified). Therefore, I believe that this aspect of the award is contrary to law.

      Based on the foregoing, I would modify the award and direct that the grievant be promoted to the GS-7 level from July, 1995, to November, 1995, at which time the grievant received his regular career level promotion. Accordingly, I would grant the Agency's exception to the extent that it challenges the Arbitrator's finding that the grievant should be compe