[ v56 p327 ]
Concurring Opinion of Member Cabaniss:
I write separately regarding precedent relied on by the Authority to determine whether the actions of an arbitrator constitute a classification matter under section 7121(c)(5). In the present case the excepting party alleges that the Arbitrator engaged in a classification action by assessing whether the grievant was entitled to a temporary promotion. The Authority rightfully determined that to not be the case because the Arbitrator assessed whether the grievant had been performing the higher-graded duties of a classified position.
What I find problematic is the singular emphasis on the fact that a temporary promotion (as opposed to permanent promotion) is being sought. Typically, most contracts provide a right of temporary promotion for being detailed to a higher-graded position or where an employee is temporarily assigned higher-graded duties of a (usually vacant) position without actually being detailed. In those situations, an arbitrator properly examines the grade level of those temporary duties to determine whether the contractual requirements for a temporary promotion have been fulfilled. An implicit predicate for the temporary promotion is that it is based upon the performance of "other" duties not permanently assigned to the employee's position, as examining the appropriate grade level of duties permanently assigned to one's position would seem to clearly constitute "the analysis and identification of a position" that the majority decision identifies as an improper classification action under section 7121(c)(5), citing to American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994).
The Authority's current line of cases, as to whether an arbitration award results in an improper classification action, no longer appears to examine whether the implicit predicate is met, i.e., whether the duties forming the basis for the temporary promotion have been permanently assigned or not to the employee's position. Instead, Authority precedent seems to focus only on the nature of the remedy requested (a permanent or a temporary promotion). The present case points out the potential for problems.
In the present matter, the former WG-11 position performing the duties in question was abolished, and it is unclear from the record as to whether the duties in question had been permanently or only temporarily assigned to the grievant, although no argument was made that the duties had been permanently transferred. Had that permanent assignment of duties occurred, I would have found this to be an improper classification action, notwithstanding that the relief sought was only a temporary promotion, because the Arbitrator would have been examining the grade level of the permanent duties of the grievant's position.
Even where the remedy sought could only be a temporary rather than permanent promotion, the Authority still needs to determine whether the promotion is based upon duties that are (or were) permanently assigned to a grievant's position. For example, in the event an agency permanently assigned higher-graded duties to a position, then deleted those duties at a later time, a temporary promotion (as opposed to a permanent promotion) would be the only possible remedy. Yet, because awarding that temporary promotion would require an arbitrator to ascertain the appropriate grade level of permanently assigned duties, an improper classification action under section 7121(c)(5) would result from doing so.
Accordingly, in temporary promotion matters arising out of arbitration exception cases, I believe the Authority and the parties before it must place less emphasis on the remedy sought (temporary promotions versus permanent promotions) and greater emphasis on whether the arbitrator is being asked to ascertain the appropriate grade level of duties permanently assigned to the position in question. [n1]
File 1: Authority's Decision in 56 FLRA No. 46
File 2: Opinion of Member Cabaniss
Footnote # 1 for 56 FLRA No. 46 - Opinion of Member Cabaniss
The matters set out at footnote 2 of the majority opinion do not assuage my concern with the need to examine more closely to what position the duties in question have been assigned.