File 2: Opinion of Member Pope
[ v60 p358 ]
Dissenting Opinion of Member Pope:
The majority errs in finding that the grievance concerns a classification matter within the meaning of § 7121(c)(5) of the Statute. Accordingly, I dissent.
Under § 7121(c)(5), a grievance concerning "the classification of any position which does not result in the reduction of grade or pay of an employee" is excluded from the scope of a negotiated grievance procedure. In construing § 7121(c)(5), the Authority has held that not all grievances that relate generally to classification fall within that exclusion. See United States Dep't of Def., Marine Corps Logistics Base, Albany, Ga., 57 FLRA 275, 277 (2001) (Marine Corps) (grievance concerning accuracy of a position description did not concern classification even if award "results in a reclassification"); VA, Medical Center, Tampa, Fla., AFGE, Local 547, 19 FLRA 1177, 1178-79 (1985) (same); VA, Regional Office, Winston-Salem, N.C., 16 FLRA 50, 51 (1984) (same). [n1] In particular, and as relevant here, the Authority has stated that, under § 7121(c)(5), an award concerns classification "where the substance of the dispute concerns the grade level of the duties assigned to and performed by the grievant . . . ." Marine Corps, 57 FLRA at 277.
Thus, the question is not whether the grievance concerns, or relates generally to, a classification matter. Instead, the question is whether the grievance concerns classification within the meaning of § 7121(c)(5). This question is answered, in turn, by determining whether the substance of the grievance concerns the grade level of the duties assigned to and performed by the grievant.
Applying the foregoing, it is clear that the grievance in this case does not concern classification within the meaning of § 7121(c)(5). In this regard, the issue before the Arbitrator was: "Did [the Agency] violate Article 59 of the Collective Bargaining Agreement when it processed [the grievant's] self-nomination package." Award at 10. The Arbitrator interpreted the issue as concerning only whether Article 59 was violated by the Agency's failure to keep adequate records of the peer review process and not whether the grievant was entitled to a reclassification. See id. at 11. The Arbitrator noted, in this regard, that the Union withdrew an earlier request that, to remedy the Agency's violation, the grievant be reclassified. See id.
The Arbitrator's interpretation of the grievance as encompassing only the record-keeping issue is consistent with the record and his authority to interpret the issue as he framed. See United States Dep't of Agric., Food Safety & Inspection Serv., W. Region, 36 FLRA 393, 398 (1990). Moreover, neither the majority nor the Agency disputes that the grievance is about record-keeping. Instead, the majority ignores this on the ground that § 7121(c)(5) does not distinguish between procedural and substantive challenges to classification. See Majority Opinion at 11, 13. The Agency, on the other hand, recognizes the narrow nature of the grievance but argues that the grievance is a "vehicle" to challenge the substance of the grievant's classification itself. [n2] Exceptions at 9-11.
The analytic problem with both the majority's and the Agency's position in this case is easily stated: both ignore Authority precedent construing § 7121(c)(5). Under that precedent, if the substance of the grievance does not concern the grade level of the grievant's duties, then it is within the permissible scope of a negotiated grievance and that is the end of the matter. Here, the grievance relates solely to record-keeping and the Arbitrator's award does not require the Agency to classify the grievant's position in any way or at any grade. As such, the award finding the grievance arbitrable is not deficient.
In finding that the grievance concerns classification within the meaning of § 7121(c)(5), the majority also relies on: (1) United States EPA, Region 2, 59 FLRA 520 (2003) (EPA); and (2) an Addendum to Article 59 of the parties' agreement [n3] along with a purported "concession" by the Union. See Majority Opinion at 12. For the reasons that follow, the majority is wrong on both counts. [ v60 p359 ]
First, EPA does not support the majority's decision. In EPA, the arbitrator found that the agency "improperly applied . . . classification criteria in finding that the grievant's position was correctly classified[.]" 59 FLRA at 525. Not surprisingly, the Authority concluded that the award concerned a classification matter and, as a result, found that "the part of the . . . award concerning the sufficiency" of the classification was deficient. Id. To be sure, the arbitrator in EPA found other, procedural, violations by the agency in connection with the classification. See id. at 521. It is misleading, however, to suggest that these other violations played any part in the Authority's finding deficient "the part" of the award concerning the sufficiency of the classification determination itself. Id. If anything, EPA supports a conclusion that the award in this case does not concern classification because, unlike EPA, the Arbitrator here did not evaluate the substance of the grievant's classification. [n4]
Similarly, the majority's reliance on the Addendum and the Union's purported "concession" is without merit. The Addendum states only that the inclusion of Article 59 as a separate article in the agreement "in no way concedes that the peer review process . . . is not `classification.'" Exceptions, Attachment B. This wording obviously does not preclude an argument that the peer review process is classification. But, just as obviously, it is neither a concession that, nor helpful in determining whether, this particular grievance concerns classification under § 7121(c)(5). Further, the Union's unremarkable statement that "[p]eer review is a classification process of promotion" tells us nothing about the application of § 7121(c)(5) to a grievance concerning only the record-keeping requirements of peer review. Opposition at 3. The majority's characterization of this statement as a "concession" is absurd. See Majority Opinion at 12.
Based on the foregoing, I would find that the Arbitrator did not err in finding that the grievance is arbitrable. I would also construe the Agency's argument that the Arbitrator did not have authority to review a classification determination as an exceeded authority claim and deny it on the ground that the award is directly responsive to the issue before the Arbitrator. See, e.g., United States Dep't of HUD, 47 FLRA 1053, 1063 (1993).
For the foregoing reasons, I would deny the Agency's exceptions in their entirety.
File 1: Authority's Decision in 60 FLRA No. 74 and Opinion of Member Armendariz
File 2: Opinion of Member Pope
Footnote # 1 for 60 FLRA No. 74 - Opinion of Member Pope
The majority's statement that these decisions "have no value as guidance" because the Statute does not preclude grievances over position descriptions entirely misses the point. Majority Opinion at 13. In all these decisions, the Authority rejected agency arguments that grievances concerned classification under § 7121(c)(5). Thus, the decisions establish, at least, that there are parameters to § 7121(c)(5) and that not all grievances that relate in some way to classification are covered by that section. Indeed, as noted above, the Authority held specifically that a grievance does not necessarily concern classification under § 7121(c)(5) even if it "results in a reclassification." Marine Corps, 57 FLRA at 277.
Footnote # 2 for 60 FLRA No. 74 - Opinion of Member Pope
The Agency relies partially on the fact that, as the Arbitrator's acknowledged, the Union initially requested as a remedy the grievant's reclassification. See Exceptions at 9. However, the Agency does not dispute that, at the time of the award, this request had been withdrawn.
Footnote # 3 for 60 FLRA No. 74 - Opinion of Member Pope
[The] placement of the Peer Review Article in this collective bargaining agreement (i