United States, Department of Agriculture, Food and Consumer Service, Dallas, Texas (Agency) and National Treasury Employees Union, Chapter 265 (Union) (Authority decision, May 31, 2005)

Final FLRA decision. The Authority sets aside an arbitration award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not address an unfair labor practice.

Plain-English summary

A USDA employee performed GS-12 duties while holding a GS-11 position for more than two years. An arbitrator awarded a retroactive temporary promotion and backpay. The Authority found that the agency's desk audit and subsequent removal of the higher grade duties showed a dispute about the grade of duties assigned to the employee's position. It held that the dispute was a classification matter excluded from negotiated grievance procedures and set aside the award. Member Pope dissented in part, reasoning that the employee sought a temporary promotion for already classified duties and would have limited the award to 120 days.

Decision snapshot

• Authority: 5 U.S.C. § 7121(c)(5).
• Outcome: Retroactive temporary promotion and backpay award set aside.
• Key point: The majority treated the long running higher grade duty assignment as a classification dispute outside arbitration.

Full text (FLRA public release)

[ v60
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60 FLRA No. 176

UNITED STATES

DEPARTMENT OF AGRICULTURE

FOOD AND CONSUMER SERVICE

DALLAS, TEXAS

(Agency)

and

NATIONAL TREASURY

EMPLOYEES UNION

CHAPTER 265

(Union)

0-AR-3868

_____

DECISION

May 31, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Otis H. King filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance alleging that the grievant was entitled to a retroactive temporary promotion and backpay for the performance of higher-graded duties.

For the reasons explained below, we find that the award is deficient as contrary to § 7121(c)(5) of the Statute. Accordingly, we set aside the award.

II. Background and Arbitrator's Award

The grievant occupied a position at the GS-11 level. By memorandum dated March 22, 2000, the grievant's team leader, a GS-12 Senior Program Specialist, advised management that the difficulty and amount of work had increased for him and the grievant. [n2] The team leader proposed a division of duties in which he would assign "GS-12 level work" to the grievant. Award 2.

The Arbitrator found no evidence of any written response to the memorandum. The Arbitrator noted that the team leader testified, without contradiction, that management was "aware of the division of duties and the assumption of higher level duties prior to his sending the March 22, 2000[,] memorandum and it was the formal notice." Id. The Arbitrator also found that the grievant may have performed higher level duties as early as January 24, 2000, the date of an earlier e-mail message from the team leader to management.

The Arbitrator also noted testimony by the Agency's Regional Director that, on or about the same date as the memorandum, "there was a request for an upgrade of the [g]rievant's position." Id. According to the Arbitrator, the Agency took no action with regard to the request and the grievant performed the new duties for the following two and one-half years without an upgrade. Id.

On June 27, 2002, the Agency conducted a desk audit, which found that the grievant was "operating at the GS-12 level." Id. The regional office then sought a promotion for the grievant, but the promotion was denied by higher level management on the ground that "it would have created an imbalance between Grade 11 and 12 for the region compared to other regions." Id. at 2-3. Subsequently, the Regional Director advised the grievant that "effective Monday June 9, 2003, I will remove the grade controlling GS-12 duties and responsibilities from your position. Therefore, you will now be working under your GS-11 position . . . ." Id. at 3.

The Union filed a grievance alleging that the grievant was entitled to a retroactive temporary promotion and backpay for the performance of higher-graded duties since January 2000. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:

Did the Agency violate the parties' Collective Bargaining Agreement, . . . law, rule, or regulation when it failed to temporarily promote the [g]rievant . . .to the Grade 12, Senior Program Specialist position for the performance of higher graded duties for more than thirty days? If so, what shall be the remedy?

Id. at 1.

The Union argued before the Arbitrator that the grievant performed higher-level duties for which she [ v60 p979 ] was qualified and began performing the grade 12 duties on January 24, 2000. The Agency argued that "it created no de facto detail for the [g]rievant[,]" and that the grievant and her team leader decided on their own to divide the GS-12 work. Id. at 5.

The Arbitrator found that the grievant "was effectively detailed to the higher level work on March 22, 2000" when management received the memorandum from the grievant's team leader and "took no action to countermand it[.]" Id. at 8. The Arbitrator noted that "[t]he desk audit validated that the [g]rievant was doing GS-12 level work" and that "[e]ven [m]anagement, admits that at some point in 2002 there was an accretion of duties that probably raised [the] [g]rievant's work to the GS-12 level." Id. at 7. The Arbitrator further noted that, by removing the grade-controlling GS-12 level work from the grievant's duties in a letter dated June 4, 2003, the Agency acknowledged that up until that time the grievant had been performing "GS-12 work." Id.

The Arbitrator concluded that the Agency's failure to temporarily promote the grievant violated Article 13.03(1) of the parties' agreement. [n3] The Arbitrator further determined that the Agency's actions constituted an unjustified and unwarranted personnel action that directly resulted in a reduction of the grievant's pay under the Back Pay Act. As a remedy, the Arbitrator directed the Agency to temporarily promote the grievant and to give her backpay, with interest, for the period of the promotion. The Arbitrator retained jurisdiction to consider the Union's request for attorney fees.

III. Positions of the Parties

A. Agency's Exceptions

The Agency asserts that, as the substance of the grievance concerns the grade level of the duties assigned to, and performed by the grievant and/or the accretion of higher-graded duties to an existing position, the award is contrary to § 7121(c)(5) of the Statute because it involves a classification matter. [n4]

The Agency also contends that it did not violate the parties' agreement and, absent such a violation, the award is contrary to the Back Pay Act.

The Agency further asserts that the award is contrary to 5 C.F.R. § 335.103(5)(c)(1)(i) by requiring the Agency to grant a retroactive temporary promotion for more than 120 days without the use of competitive procedures. [n5] The Agency relies on the advisory opinion of the Office of Personnel Management (OPM) interpreting 5 C.F.R. § 335 that was discussed in United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, S.C., 60 FLRA 46 (2004) (Chairman Cabaniss and Member Pope concurring) (Dep't of Veterans Affairs). The Agency also claims that the award of a retroactive temporary promotion for more than 120 days without the use of competitive procedures is inconsistent with an Agency regulation, FNS Instruction 330-1, Section VII, subparagraphs A and B, and fails to draw its essence from Article 13, Section 13.04 of the parties' agreement. [n6]

Finally, the Agency asserts that the Arbitrator exceeded his authority insofar as the award "pertains to" various management reserved rights. Id. at 2.

B. Union's Opposition

The Union contends that the Authority should not consider the exceptions because they are not a "self-contained document" within the meaning of § 2425.2 of the Authority's Regulations. The Union argues that the Agency did not include a copy of the parties' agreement or the portions "that would reflect on any argument the Agency made in its exceptions." Opposition at 2.

The Union also contends that the Agency is barred by § 2429.5 of the Authority's Regulations from raising a claim that the award concerns a classification matter and is therefore contrary to § 7121(c)(5) of the Statute. The Union asserts that the Agency never presented this issue to the Arbitrator. Citing United States Dep't of Veterans Affairs, Gulf Coast Veterans Health Care System, Biloxi, Miss., 57 FLRA 77, 78-79 (2001), the Union asserts that [ v60 p980 ] the Authority will not rule on "procedural issues of arbitrability that should have been but were not raised with the [a]rbitrator." Id. at 3-4. The Union further asserts that § 2429.5 also bars the Agency from raising the issue of "a competitive procedure after 120 days of a temporary promotion" because the Agency did not raise that issue before the Arbitrator. Id. at 4.

As to the award, the Union requests that the Authority "consider this case as ripe for carving out an exception" to the ruling in Dep't of Veterans Affairs. Id. at 5. The Union argues that the grievant's case is an example of how OPM's interpretation of 5 C.F.R. § 335.103(5)(c) "hamstrings [F]ederal employees who try their best to bring issues to management's attention[.]" Id. at 5. In this regard, the Union asserts that "[t]he Agency sat on the desk audit, then removed the higher graded duties without ever paying the grievant a dime. This is not a fair result, and the Authority should not allow this result to stand . . .." Id. at 6.

IV. Analysis and Conclusions

A. The record is sufficient under § 2425.2 of the Authority's Regulations to address the exceptions

Section 2425.2 of the Authority's Regulations requires an exception to be a self-contained document which sets forth in full "[a]rguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities[.]"

The Union claims that the exceptions do not comply with this regulatory requirement because the Agency did not include a copy of the parties' agreement or relevant portions of that agreement in its exceptions. However, the exceptions and the award itself set forth the specific language of the parties' agreement that is at issue. Therefore, we conclude that the record is sufficient under § 2425.2 to address the exceptions. [n7]

B. The issue of § 7121(c)(5) is not barred by § 2429.5

Section 2429.5 of the Authority's Regulations states, as relevant here, that "[t]he Authority will not consider . . . any issue[] which was not presented in the proceedings before the . . . arbitrator."

The Agency argues that the award is contrary to § 7121(c)(5) of the Statute because the award concerns a classification matter. In response, the Union maintains that this issue was not raised before the Arbitrator and should not be considered by the Authority under § 2429.5 of the Authority's Regulations. In considering the Union's argument, we take this opportunity to review our precedent on whether a party's failure to raise a claim that § 7121(c) of the Statute bars an arbitrator from addressing a grievance precludes the Authority from addressing such a claim on exceptions to an award. For the reasons explained below, we conclude that exceptions asserting that an award is contrary to § 7121(c) are properly before the Authority for resolution whether or not the exceptions concern arguments that were raised in arbitration proceedings.

Section 7121(c) states that negotiated grievance procedures "shall not apply with respect to any grievance concerning--

(1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities);

(2) retirement, life insurance, or health insurance;

(3) a suspension or removal under section 7532 of this title;

(4) any examination, certification, or appointment; or

(5) the classification of any position which does not result in the reduction in grade or pay of an employee.

Stated otherwise, § 7121(c) sets forth "mandatory exclusions" from the scope of negotiated grievance and arbitration procedures. NTEU, Chapter 260, 52 FLRA 1533, 1537 (1997). Parties may not include such matters in their negotiated procedures. Id. On its face, then, § 7121(c) limits the availability of negotiated grievance and arbitration procedures and, by doing so, renders unlawful an award concerning any of the matters enumerated therein. See, e.g., United States Dep't of Transportation, Federal Aviation Admin., 59 FLRA 579 (2004) (arbitrator's determination that grievance was arbitrable found inconsistent with § 7121(c)(2) and award was set aside).

In United States EEOC, Memphis District Office, Memphis, Tenn., 18 FLRA 88, 89 (1985) (EEOC), the Authority addressed for the first time a union's claim that an agency was "estopped from contending" in its [ v60 p981 ] exceptions that an award was deficient as contrary to § 7121(c)(5) "because it failed to comply with the parties' collective bargaining agreement as to when arbitrability issues must be raised." EEOC, 18 FLRA at 89 n.2. The Authority found that "because section 7121(c)(5) precludes grievances concerning classification and because the [a]gency has timely filed an exception contending that the award was precluded on that basis, the [a]gency's exception is not barred and is properly before the Authority for resolution under the Statute." Id. The Authority's decision in EEOC did not refer to § 2429.5.

Subsequently, in United States Dep't of the Interior, Nat'l Park Serv., Golden Gate Nat'l Recreation Area, San Francisco, Calif, 55 FLRA 193 (1999) (Golden Gate), the Authority effectively overruled EEOC without citing it. In Golden Gate, the agency had not argued to the arbitrator, as it had in its exceptions to the Authority, that the grievance was precluded by § 7121(c)(3), which, like § 7121(c)(5), is one of the mandatory exclusions from the scope of negotiated grievance procedures. Finding that the issue presented related to the arbitrability of the grievance, the Authority held that the issue "clearly could, and should, have been presented to the [a]rbitrator[,]" and the Authority declined to consider the exception under § 2429.5 of our Regulations. Golden Gate, 55 FLRA at 195. The Authority stated that, while the Authority's subject matter jurisdiction may be raised at any stage of the Authority's proceedings, the agency was "not questioning the jurisdiction of the Authority to issue a decision resolving its exception. Instead the [a]gency [was] questioning for the first time in its exception the jurisdiction of the [a]rbitrator to resolve the grievance." Id. The Authority did not further explain the basis for its decision.

The Authority's holding in Golden Gate has been applied subsequently in several decisions. See, e.g., Soc. Sec. Admin., Balt., Md., 57 FLRA 690, 694 (2002) (§ 2429.5 bars agency claim that arbitrator made classification determination in violation of § 7121(c)(5), where agency did not make the argument before the arbitrator); United States Dep't of the Army, Dugway Proving Ground, Dugway, Utah, 57 FLRA 224, 227 (2001) (same). Those decisions cited Golden Gate, without additional explanation.

On consideration of the language of the Statute and the precedent cited above, we believe that the Authority's earlier approach in EEOC, rather than its subsequent approach in Golden Gate, is consistent with the text and intent of § 7121(c) of the Statute. EEOC recognizes that, pursuant to § 7121(c), arbitrators have no authority to rule on grievances that are mandatorily excluded from the scope of negotiated grievance procedures.

In our view, permitting the application of § 2429.5 to bar consideration of whether an arbitrator has subject matter jurisdiction over a grievance in conformance with § 7121(c) of the Statute, as the Authority did in Golden Gate, runs afoul of the express terms of § 7121(c). Golden Gate improperly confers statutory jurisdiction on an arbitrator to resolve a proceeding that is barred by the Statute from occurring in the first place. Put simply, a party's failure to present an issue to an arbitrator cannot have the effect of creating jurisdiction in an arbitrator over a matter that Congress expressly excluded in § 7121(c) of the Statute. Rather, consistent with the approach taken by the Authority prior to Golden Gate, where an issue is presented to the Authority concerning a statutory exclusion under § 7121(c) of the Statute, the Authority is required to address that statutory issue, regardless of whether the issue was also presented to the arbitrator. [n8] See EEOC, 18 FLRA at 89 n.2 (the Authority held that the exception that award was contrary to § 7121(c)(5) was not barred and properly before the Authority because § 7121(c)(5) precludes grievances concerning classification). See also Devine v. Levin, 739 F.2d 1567, 1570 (Fed. Cir. 1984) (The court held that "[i]t was the arbitrator's duty, just as it is th[e] court's duty, to consider a jurisdictional question regardless of when it [i]s raised during the proceeding.").

Accordingly, consistent with the foregoing, we will address the Agency's § 7121(c)(5) exception in this case. To the extent that the Authority's decisions in Golden Gate and similar cases involving § 7121(c) claims are inconsistent with today's decision, they will no longer be followed.

C. The award is deficient under § 7121(c)(5)

Where, as here, an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent [ v60 p982 ] with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

As noted previously, under § 7121(c)(5) of the Statute, grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" are precluded by law from coverage by a negotiated grievance procedure.

The Authority has construed the term "classification" in § 7121(c)(5) in the context of 5 C.F.R. § 511.101(c), which defines the term 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 under chapter 51 of title 5, United States Code." See AFGE, Local 987, 37 FLRA 386, 389 (1990); Dep't of the Army, New Cumberland Army Depot, 21 FLRA 968, 969-70 (1986). Where the substance of a grievance concerns the grade level of the duties assigned to, and performed by the grievant, the grievance concerns the classification of a position within the meaning of § 7121(c)(5) of the Statute. Similarly, where the substance of a grievance concerns the accretion of higher-graded duties to an existing position, the grievance concerns a classification matter. See Soc. Sec. Admin., 60 FLRA 62 (2004) (SSA).

Where, however, the substance of a grievance concerns whether a grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having temporarily performed the duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5) of the Statute. See, e.g., United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795 (1991). The Authority has recognized that a mere claim that a grievant is entitled to a temporary promotion will not cure a grievance that pertains to temporary duties assigned to the grievant's permanent position. See SSA, 60 FLRA at 64.

In this case, the grievant claimed that she had been performing higher-graded work of a GS-12 position since sometime in early 2000. The Arbitrator found that the Agency had assigned the grievant GS-12 grade-controlling duties since March 2000 by virtue of the fact that the Agency had "detail[ed]" the grievant "to higher level work." Award at 8. As a consequence, the Arbitrator found that the grievant was entitled to be temporarily promoted under the parties' agreement.

In our view, the grievance concerned a classification matter under § 7121(c)(5) of the Statute. In this connection, the record reflects that the grievant sought, and attempts were made, to "upgrade" the grievant's permanent position after the grievant began performing higher-graded duties. Award at 2. The Agency subsequently conducted a desk audit of the grievant's position that revealed that the grievant was in fact performing higher-graded GS-12 work. See Award at 3. Such actions are consistent with attempts to determine the proper grade level to assign to the duties being performed by the grievant, which constitutes a classification matter within the meaning of § 7121(c)(5). Rather than reclassifying the grievant's position at the GS-12 level, however, the Agency removed the grade-controlling duties from the grievant's position.

The Authority previously has held that grievances concerning the grade level of duties assigned to permanent positions relate to the classification of those positions and may not be grieved under § 7121(c)(5) of the Statute. See, e.g., AFGE, Local 987, 52 FLRA 212, 215 (1996) (arbitrator correctly determined that grievance, claiming entitlement to temporary promotion under parties' agreement, concerned grade level of duties assigned to grievant's permanent position, and, as such, was not arbitrable because it concerned a classification matter under § 7121(c)(5)). We reach the same result here.

Because the Arbitrator resolved an issue that involved the classification of the grievant's grade level, we find that the award is inconsistent with § 7121(c)(5) of the Statute. Accordingly, we set aside the award.

V. Decision

The award is set aside as contrary to § 7121(c)(5) of the Statute. [n9]

File 1: Authority's Decision in 60
FLRA No.
176

File 2: Opinion of Member Pope

Footnote # 1 for
60
FLRA No. 176

• Authority's Decision

Member Pope's opinion, dissenting in part, is set forth at the end of this decision.

Footnote # 2 for
60
FLRA No. 176

• Authority's Decision

The Union refers to the author of the memorandum as the grievant's team leader. We will use the same terminology.

Footnote # 3 for
60
FLRA No. 176

• Authority's Decision

Article 13, Section 13.03 provides that:

(1) It is agreed that an employee detailed to a higher graded position for more than (30) consecutive calendar days will be temporarily promoted to the position effective with the beginning of the first full pay period following the 30th day of the detail, providing the employee meets the appropriate qualification standards and time-in-grade requirements.

Award at 4.

Footnote # 4 for
60
FLRA No. 176

• Authority's Decision

As discussed further below, under § 7121(c)(5) of the Statute, a grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" is precluded from coverage by a negotiated grievance procedure.

Footnote # 5 for
60
FLRA No. 176

• Authority's Decision

5 C.F.R. § 335.103 provides, generally, for the use of competitive procedures for certain promotion actions.

Footnote # 6 for
60
FLRA No. 176

• Authority's Decision

As relevant here, both the cited regulation and agreement provision require the use of competitive procedures for details or temporary promotions of more than 120 days to higher grade positions.

Footnote # 7 for
60
FLRA No. 176

• Authority's Decision

The Union's additional argument that, "by failing to brief its argument[s,]" the Agency's exceptions do not satisfy
§ 2423.28(a)(3) of the Authority's Regulations, is misplaced. Opposition at 3. Section 2423.28(a)(3), which has been modified and renumbered as § 2423.40, applies to exceptions to decisions of Administrative Law Judges, not to arbitration awards. See United States Dep't of Justice, Immigration and Naturalization Service, Los Angeles, Cal., 59 FLRA 387, 389 n.4 (2003).

Footnote # 8 for
60
FLRA No. 176

• Authority's Decision

Of course, parties' and arbitrators' resources are more efficiently used when jurisdictional issues concerning § 7121(c) that can be presented to an arbitrator are, in fact, presented to the arbitrator. Nonetheless, for the reasons stated above, a party's failure to do so cannot serve to confer jurisdiction on an arbitrator to resolve an issue that he or she is precluded by § 7121(c) of the Statute from considering at all.

Footnote # 9 for
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FLRA No. 176

• Authority's Decision

In view of this determination, it is unnecessary to address the additional exceptions.

[ v60
p983 ]

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 from failing to raise § 335.103(c)(1)(i) in arbitration proceedings. [n2]

In sum, I would modify the award to limit the temporary promotion to 120 days and I would dismiss the Agency's remaining exceptions. Accordingly, I dissent in part.

File 1: Authority's Decision in 60 FLRA No. 176

File 2: Opinion of Member Pope

Footnote # 1 for
60
FLRA No. 176

• Opinion of Member Pope

The grievant performed the disputed duties, with the Agency's knowledge, for nearly 3 years before they were removed from her position. See Award at 2-3. While the Agency's removal of the duties demonstrates they were not permanently assigned, the fact remains that they were assigned for a significant period of time. This shows the peril in attempting to determine whether disputed duties have been permanently or temporarily assigned. This also shows why the correct question is whether disputed duties are properly classified as part of a grievant's position, not whether they are assigned to the permanent position.

Footnote # 2 for
60
FLRA No. 176

• Opinion of Member Pope

In modifying the award in this regard, I would find it unnecessary to address the Agency's additional claims on this point.