File 2: Opinion of Member Pope

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Opinion of Member Carol Waller Pope, dissenting in part:

      I agree with the majority that the record is sufficient to address the Agency's exceptions and that the Agency's argument regarding § 7121(c)(5) of the Statute is properly before us. However, for the following reasons, I disagree with the majority's decision to set aside the award. Accordingly, I dissent in part.

      Section 7121(c)(5) provides that a negotiated grievance procedure may not include within its scope a grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee." The Authority has construed the term "classification" as "the analysis and identification of a position and placing it in a class under the position-classification plan established by the Office of Personnel Management[.]" AFGE, Local 987, 37 FLRA 386, 389 (1990)) (quoting 5 C.F.R. § 511.101(c)).

      Stated in general terms, a grievance does not concern classification when it seeks a temporary promotion under a collective bargaining agreement based on performing previously-classified duties of a higher-graded position. United States Dep't of Agric., Food Safety & Inspection Serv., 60 FLRA 192, 194-95 (2004) (Member Pope dissenting as to application of standard); United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795, 796, 801 (1991) (Cherry Point). Stated more precisely, a grievance does not concern classification if it meets two, separate criteria. First, the grievance must involve only a temporary, not a permanent, promotion. See United States Dep't of Veterans Affairs, Med. Ctr., Asheville, N.C., 59 FLRA 605, 607 (2004). This recognizes that a permanent promotion based on performing higher-graded duties involves a reclassification of a grievant's permanent position, a matter encompassed by § 7121(c)(5). See 5 C.F.R. § 335.103(c)(3)(ii) (agencies may noncompetitively promote employee based on "classification at higher grade because of additional duties and responsibilities"). Cf. AFGE, Local 987, 58 FLRA 453, 454-55 (2003) (grievance seeking permanent promotion involved classification). Second, a claimed temporary promotion must be based on performing previously-classified duties of a higher-grade position, not duties properly classified as part of the grievant's permanent position. See AFGE, Local 1617, 55 FLRA 345, 347 (1999). This recognizes that: (1) if the disputed duties have not previously been classified, then resolution of the grievance requires classification of the duties; and (2) if the dispute is over duties properly classified as part of the grievant's permanent position, then the grievance is, in effect, seeking reclassification of that position. In either instance, § 7121(c)(5) proscribes arbitral jurisdiction. See United States Nuclear Regulatory Comm'n, 54 FLRA 1416, 1421-22 (1998) (Member Wasserman dissenting) (grievance involving performance of previously-unclassified duties); AFGE, Local 2142, 51 FLRA 1140, 1142 (1996) (grievance involving performance of duties assigned to permanent position).

      Applying the foregoing here, there is no dispute that the grievant sought, and the Arbitrator awarded, a temporary (not a permanent) promotion. See Award at 3, 9. Thus, the first criterion is satisfied.

      The second criterion is satisfied also. In this regard, after the grievant had performed the disputed duties for over 2 years, the Agency audited the grievant's position and classified the disputed duties as higher-graded. See id. at 2. There is no dispute that the Agency's audit was correct. As a result, the Arbitrator was not required to, and did not, classify the duties. Moreover, nearly a year after the audit, the Agency notified the grievant that the disputed duties were removed from her position. See id. at 3. The fact that the Agency removed the disputed duties from the grievant makes it crystal clear that the disputed duties are not properly classified as part of the grievant's permanent position.

      Put simply, the grievance in this case concerns, by its terms, a temporary promotion for performing previously-classified duties associated with a position other than the grievant's. As a result, over twenty years of Authority precedent mandates a conclusion that the grievance does not concern classification under § 7121(c)(5). See Ga. Air Nat'l Guard, 165th Tactical Airlift Group, Savannah, Ga., 15 FLRA 442, 442-43 (1984).

      In finding to the contrary, the majority confuses both the facts and applicable precedent.

      As for the facts, the majority emphasizes that, prior to the filing of the grievance, the grievant sought a permanent reclassification of her position at a higher grade. However, the majority neither explains how this is relevant nor addresses Authority precedent holding that it is not relevant. See Cherry Point, 42 FLRA FLRA at 801-02 (grievance did not involve classification, despite prior desk audit); United States DOL, 5 FLRA 60, 62 (1981) (grievance did not involve classification, despite prior grievance involving classification). Whatever the grievant sought prior to the grievance in this case, it is undisputed that the grievance seeks only a temporary promotion for performing previously-classified duties assigned to another, higher-graded [ v60 p984 ] position. Indeed, reclassification is no longer possible because the duties on which the request was predicated have been removed from her position. The majority penalizes the grievant for having demonstrated successfully that she performed higher-graded duties only to have those duties removed from her position. The majority's reasoning -- that since the grievant once requested reclassification she must now be requesting reclassification -- defies logic.

      As for precedent, the majority finds dispositive its finding that the disputed duties were assigned to the grievant's permanent position. See Majority Opinion at 13. This muddles the law. Of course the duties were assigned to the grievant's permanent position. Except in the rare case where a grievance is over duties performed in a position to which a grievant has been formally detailed, these grievances always involve duties assigned to a grievant in his/her permanent position. The correct -- quite different -- question is whether the disputed duties are properly classified as part of the grievant's permanent position. [n1]  Here, there is no doubt that the duties are not so classified; the fact that the Agency removed the duties following the audit establishes that fact conclusively. The majority's misreading of the law in this regard will turn virtually all (previously garden-variety) temporary promotion cases into classification matters.

      For the foregoing reasons, I would find that the grievance and the award do not concern classification. Accordingly, I would deny the Agency's § 7121(c)(5) exception.

      With regard to the Agency's remaining exceptions, the Agency claims without any support that the Arbitrator exceeded his authority and that the award is inconsistent with management rights. Therefore, I would deny the Agency's exceptions as bare assertions. See, e.g., United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000). I would also deny the Agency's Back Pay Act exception because the Arbitrator's findings that the Agency violated the parties' agreement by denying the grievant a temporary promotion and that the violation resulted in a loss of pay meets the requirements of the Act. See United States Dep't of HHS, Pub. Health Serv., Navajo Area Indian Health Serv., 50 FLRA 383, 385-86 (1995).

      I would, however, find that, consistent with Authority precedent applying 5 C.F.R. § 335.103(c)(1)(i), the award should be modified to limit the temporary promotion to 120 days. In this regard, in United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 60 FLRA 46, 49-50 (2004) (VA) (Chairman Cabaniss and Member Pope concurring), the Authority held that retroactive temporary promotions for more than 120 days may not be awarded in the absence of competitive procedures. I note that the Authority decided VA during the processing of this case before the Arbitrator and that, as VA modified precedent regarding 5 C.F.R. § 335.103(c)(1)(i), the Agency had no reason to raise that regulation before the Arbitrator. Therefore, I would find that 5 C.F.R. § 2429.5 does not bar the Agency from relying on it here. However, I emphasize that this would not excuse parties in cases litigated after VA