File 2: Opinion of Member Pope

[ v60 p196 ]

Member Carol Waller Pope, dissenting in part:

      I agree with the majority's decision to deny the Agency's exceeded authority exception. For the reasons that follow, I would also deny the Agency's other exceptions.

      The Authority has long held that a grievance concerning an alleged entitlement to a temporary promotion "by reason of having performed the established duties of a higher-graded position . . . does not concern the classification of a position within the meaning of § 7121(c)(5)" of the Statute. United States Dep't of Veterans Affairs, Med. Ctr., Asheville, N.C., 59 FLRA 605, 607 (2004) (citation omitted). Here, the Arbitrator determined that, based on the Agency's matrix, the grievant's duties warranted a temporary promotion. That matrix constitutes the Agency's determination to classify those duties as the higher-grade level. Thus, contrary to the majority's finding that the Arbitrator "classified and graded a set of duties[,]" in fact the Arbitrator merely applied the Agency's existing classification of those duties. [*]  Majority Opinion at 8. As such, the Arbitrator did not make a classification determination, and I would deny this exception.

      I would also deny, as unsupported, the Agency's essence and nonfact exceptions, as well as its exceptions that the award violates management rights and the Back Pay Act. In this regard, an award of a temporary promotion based on performing higher-graded duties does not affect management's rights, see AFGE, Local 1923, 38 FLRA 89, 96-97 (1990), and backpay in these circumstances is consistent with the Back Pay Act. See United States Dep't of the Army, Fort Polk, La., 44 FLRA 1548, 1554 (1992). Finally, I would deny the Agency's exception that the award conflicts with its regulations on the ground that "collective bargaining agreements, and not agency rules and regulations, govern the disposition of matters to which they both apply[.]" United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186, 194 (1990).

      Accordingly, I would deny all the Agency's exceptions.

File 1: Authority's Decision in 60 FLRA No. 43
File 2: Opinion of Member Pope

Footnote * for 60 FLRA No. 43 - Opinion of Member Pope

   There is no claim that the Arbitrator misapplied the matrix; the Agency's subsequent decision to promote the grievant for performing the same duties proves he did not.