File 2: Opinion of Member Pope
[ v58 p622 ]
Dissenting Opinion of Member Carol Waller Pope:
I agree with the majority that the Union's nonfact and essence exceptions should be denied. However, I do not agree that the Union's exception that the award is contrary to law should be denied. In particular, for the reasons that follow, I would find that the grievance does not concern a classification matter, within the meaning of § 7121(c)(5) of the Statute, and that the Arbitrator's award to the contrary is deficient. In addition, although I agree that the Union's exception that the Arbitrator exceeded his authority should be denied, I reach this conclusion for different reasons than the majority's.
With regard to whether the grievance concerns a classification matter, there is no dispute that, through the grievance, the grievant sought a temporary promotion to an established, higher-graded position. See Award at 1 ("The grievance . . . charged a continuing violation of the agreement in that [the grievant] had been temporarily assigned to a higher graded position . . . ."). Consistent with this, the grievant requested a promotion only "until such time as he is no longer performing the duties and responsibilities" of the higher graded position. Id. at 3. See also Jt. Ex. 2 (April 5 letter). Additionally, the contract provision allegedly violated, Article 13, is entitled "Temporary Promotions" and concerns only temporary promotions. Award at 1; Attachment 3 to Exceptions at 44.
I agree that, where the substance of a grievance concerns the grade level of the duties permanently assigned to and performed by a grievant, the grievance concerns the classification of a position. See SSA, 31 FLRA 933, 936 (1988). I also agree that when a grievance seeks a permanent promotion, or reclassification at a higher grade, the grievance concerns the classification of a position. In this case, however, the Arbitrator made no findings that the grievance involved duties permanently assigned to the grievant or sought either a permanent promotion or reclassification. I note, in this connection, that the Arbitrator expressly found that the grievance involved an allegation that the grievant had performed "instructing" duties. Award at 7. These duties are not included in the grievant's position description. [n1] See Attachment to Exceptions (position description for Materials Expediter (Fork Lift/Motor Vehicle Operator, WG-6910-05). By contrast, those duties are permanently assigned to the position to which the grievant was seeking a temporary promotion. See Un. Ex. 9 at 6.
As correctly noted by the majority, the Authority reviews the issue of whether the award is contrary to § 7121(c)(5) de novo. As such, the fact that the Arbitrator concluded that the award concerned a classification matter is not dispositive. Instead, it is necessary to resolve the question on the basis of the record. Doing so, it is clear that the record contains no evidence that the grievance concerns a classification matter and that the Arbitrator made no findings supporting his conclusion that it does. Accordingly, I would find that the Arbitrator erred in concluding that the grievance concerns classification, and I would remand this matter to the parties for a resolution of the grievance on the merits. [n2]
Finally, although I agree with the majority that the Union's exceeded authority exception should be denied, I disagree with the majority's reasoning for doing so. In this regard, the majority denies the exception because it concludes that the Arbitrator's determination of the classification issue made it unnecessary for the Arbitrator to resolve the alleged prohibited personnel practice issue. As there is no assertion or evidence that this is the case, I believe this analysis is incorrect. Nevertheless, because the parties did not stipulate the issues before the Arbitrator, the Arbitrator had discretion to determine to resolve -- or not resolve --the prohibited personnel practice issue. See United States Dep't of the Army, Corps of Eng'rs, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997). In my view, the Union's exception should be denied on this basis.
Based on the foregoing, I dissent.
File 1: Authority's Decision in 58 FLRA No. 157
File 2: Opinion of Member Pope
Footnote # 1 for 58 FLRA No. 157 - Opinion of Member Pope
That the grievant filed a previous grievance alleging that his position was improperly classified does not demonstrate that the grievance in this case alleges the same thing. In this regard, the Arbitrator specifically found that the grievance in this case is different from the previous grievance, stating that this grievance alleges that "the grievant had performed his duties as an instructor . . . subsequent to the prior arbitration." Award at 7.
Footnote # 2 for 58 FLRA No. 157 - Opinion of Member Pope
The majority's construction of the Union's reference to AFI 36-1402, para. 4.4 as demonstrating that the grievance concerns classification is unwarranted and unfair. The Union expressly cited that provision only in connection with its argument that the work performed -- not a position description -- is controlling in determining whether a temporary promotion is warranted. See Exceptions at 2 ("Clearly . . . AFI 36-1401 . . . recognizes that what is actually being performed may not be in agreement with a position description developed by the classification branch. If that is so, then that performance is the prevailing factor . . . .").