Dissenting Opinion of Member Carol Waller Pope:

By setting aside the award on a ground not raised in the Agency's exceptions, the majority violates the parties' due process rights and renders a decision that is arbitrary and capricious on its face. Accordingly, I dissent.

The grievance sought a temporary promotion for the grievant. See Award at 1. The Arbitrator found that the grievance was "timely and arbitrable" and, on the merits, awarded the grievant backpay for duties performed while, according to the Arbitrator, the grievant was detailed to higher-grade positions. See id. at 17-18. The Agency claims that the award is "ambiguous" and "contrary to law and Government-wide regulation." Exceptions at 4, 5. Although the Agency does not specify the law and/or regulation with which the award allegedly conflicts, the Agency appears to argue that the award conflicts with: (1) 5 C.F.R. § 300.301 because, under that regulation, the Agency claims a detailed employee "continues to hold the position from which detailed and keeps the same status and pay"; and/or (2) 5 C.F.R. § 335.102, which, the Agency claims provides that temporarily-promoted employees receive higher pay and experience for the period of their temporary promotions. Exceptions at 5.

Addressing the Agency's exceptions, I would deny the exception that the award is ambiguous on the ground that the Agency has not established that the award is impossible to implement. See, e.g., United States Dep't of the Army, Norfolk, District, Army Corps of Engineers, Norfolk, Va., 59 FLRA 906, 910 (2004) (to show award deficient as ambiguous, party must show implementation is impossible because meaning and effect of award is too unclear or uncertain). As for the Agency's argument concerning 5 C.F.R. § 300.301, nothing in that regulation explicitly or implicitly precludes an agency from providing higher pay to an employee detailed to a higher-grade position. See Majority Opinion, Appendix. Likewise, the Agency points to nothing in 5 C.F.R. § 335.102, which addresses agency authority to "promote, demote, or reassign," that is pertinent to this case. See id. Accordingly, I would deny the Agency's exceptions.

The Agency's failure to demonstrate that the award is deficient on any of the grounds raised in its exceptions should end the matter. The majority does not resolve the case on the basis of the Agency's exceptions, however. Instead, the majority finds the award deficient on the ground that it concerns classification under § 7121(c)(5) of the Statute. In so doing, the majority abdicates its role as a neutral adjudicator and embraces the role of Agency advocate.

"A fair trial before a fair and impartial tribunal, whether a court or administrative agency, is a basic requirement of due process." Baran v. Port of Beaumont Navigation Dist. of Jefferson County, Tex., 57 F.3d 436, 444 (5th Cir. 1995). Accord Deretich v. Office of Admin. Hearings, State of Minn., 798 F.2d 1147, 1152 (8th Cir. 1986) ("a hearing officer must be impartial for an administrative agency to meet the requirements of due process."). Consistent with this principle, the Authority has long declined to address issues that are not raised by a party. [n1] See, e.g., United States Dep't of Commerce, Patent & Trademark Office, 60 FLRA 839, 842 (2005) (Authority did not address subsections of § 7106(b) not raised by party); United States Dep't of Agric., Rural Dev., Wash., D.C., 60 FLRA 527, 528 n.1 (2004) (Authority did not address arbitral finding of § 7116(a)(1) violation not raised by party); United States Dep't of the Navy, Naval Surface Warfare Ctr., Carderock Div., Acoustic Research Detachment, Bayview, Idaho, 59 FLRA 763, 765 (2004) (Chairman Cabaniss concurring) (Authority did not address prong I of BEP framework not raised by party); AFGE, Council 236, 56 FLRA 136, 137 n.5 (2000) (Authority did not address exceptions to Federal Employees Pay Act not raised by party); United States Dep't of Agric., Forest Serv., 35 FLRA 542, 544 (1990) (Authority did not address arbitral findings of violations not raised by party); IRS, Des Moines, Iowa Dist., 35 FLRA 144, 146 (1990) (Authority did not address arbitral findings of violations not raised by party); Navy Pub. Works Ctr., Norfolk, Va., 35 FLRA 93, 96 n.2 (1990) (Authority did not address issues regarding backpay award not raised by party).

Consistent with the Authority's general refusal to raise issues sua sponte, as set forth above, the Authority has, with two exceptions discussed below, refused to raise issues regarding arbitral jurisdiction sua sponte. See AFGE, Local 987, 57 FLRA 551, 554 (2001) (Chairman Cabaniss dissenting). [n2] The majority now reverses this precedent by relying on the two exceptions. [n3] In so doing, the majority creates the impression it is simply following precedent. In reality, however, the majority misses the forest for the trees. In this [ v61 p15 ] regard, the above-cited decisions demonstrate that the clear weight of Authority precedent is that the Authority will not raise arguments for a party.

Moreover, the two decisions relied on by the majority are clearly distinguishable. In this connection, in both NLRB, 35 FLRA 1116 (1990), and Dep't of HHS, SSA, 15 FLRA 714 (1984) (HHS), arbitral jurisdiction was controlled exclusively by the status of the grievants -- as a non-preference-eligible excepted service employee and a probationary employee, respectively -- and that status was undisputed and clear from the face of each award. See NLRB, 35 FLRA at 1124-26; HHS, 15 FLRA at 714-16. [n4]

In contrast to NLRB and HHS, the § 7121(c)(5) issue raised sua sponte by the majority here does not involve an undisputed issue regarding the grievant's status and is not clearly resolved on the face of the award. Moreover, issues regarding § 7121(c)(5) are especially fact-bound. See, e.g., United States Dep't of HHS, Food & Drug Admin., New Eng. Dist. Office, 58 FLRA 567, 569 (2003) (citation omitted) (in finding award did not involve classification, Authority relied on arbitrator's underlying factual findings). As a result, § 7121(c)(5) issues are particularly unsuited for sua sponte resolution and the majority's determination to raise the issue for the Agency is particularly suspect.

I note that the Agency raised a classification issue below, see Award at 9, and, thus, knows how to do so. There is no suggestion that the Agency has renewed its claim in its exceptions. I would conclude, as a result, that the Agency has abandoned the claim. [n5] I also note that the majority's willingness to manufacture arguments for the Agency raises troubling questions about what other arguments the majority will invent. Will the majority scour cases to look for other ways to question arbitral jurisdiction? Is there any reason that an agency should raise specific exceptions at all? Why shouldn't an agency simply file exceptions and ask the Authority to find its own basis to overturn an award?

For the foregoing reasons, I cannot subscribe to the majority's approach. As such, I would not consider § 7121(c)(5). Instead, I would deny the Agency's exceptions.

File 1: Authority's Decision in 61 FLRA No. 3
File 2: Opinion of Member Pope

Footnote # 1 for 61 FLRA No. 3 - Opinion of Member Pope

The Authority will raise issues regarding its own jurisdiction sua sponte. See United States Small Business Admin., Wash., D.C., 51 FLRA 413, 423 n.9 (1995) (Authority raised § 7116(d) sua sponte and found it lacked jurisdiction). The award in the case now before us does not present any issues regarding the Authority's jurisdiction.

Footnote # 2 for 61 FLRA No. 3 - Opinion of Member Pope

I note that AFGE, Local 987 was based in part on the principle that a party may not raise in exceptions a claim regarding arbitral jurisdiction if such claim was not raised below. See 57 FLRA at 554. In United States Dep't of Agric., Food & Consumer Serv., Dallas, Tex., 60 FLRA No. 176 (May 31, 2005) (FCS), the Authority reconsidered that principle and found, unanimously, that an agency may raise § 7121(c)(5) in exceptions whether or not the matter was raised below. See FCS, slip op. at 7-10. This is a far cry from the majority's holding here that the Authority must raise § 7121(c)(5) even though the Agency does not. As such, the majority errs in relying on FCS for its decision in this case.

Footnote # 3 for 61 FLRA No. 3 - Opinion of Member Pope

The majority actually cites three decisions. However, in the third decision, the agency expressly excepted to the award on jurisdictional grounds. AFGE, Local 916, 47 FLRA 150, 152 (1993). Thus, that decision is inapposite here.

Footnote # 4 for 61 FLRA No. 3 - Opinion of Member Pope

As NLRB and HHS are clearly distinguishable, I find it unnecessary to address whether those decisions are consistent with due process principles. Nevertheless, I have serious doubts that the Authority should raise and resolve any issues, other than those involving the Authority's jurisdiction, that are not raised by a party.

Footnote # 5 for 61 FLRA No. 3 - Opinion of Member Pope

In my view, the Agency has done so for good reason. In this regard, the Arbitrator found, and the Agency does not dispute, that the grievant performed the previously-classified duties of higher-graded positions. As such, the award does not involve classification under § 7121(c)(5). See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Cincinnati Dist., Cincinnati, Ohio, 47 FLRA 207 (1993).