[ v61 p8 ]
61 FLRA No. 3
UNITED STATES
DEPARTMENT OF THE ARMY
FORT POLK, LOUISIANA
(Agency)
DEPARTMENT OF THE ARMY
FORT POLK, LOUISIANA
(Agency)
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R5-168
(Union)
OF GOVERNMENT EMPLOYEES
LOCAL R5-168
(Union)
0-AR-3899
_____
DECISION
June 3, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
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 Samuel J. Nicholas 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 Agency violated the parties' agreement and an Agency regulation by failing to temporarily promote the grievant, a Work Order Clerk, GS-4 to a Telephone Control Officer (TCO), GS-7, for duties performed at that grade level.
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 was employed as a Work Order Clerk, GS-4 for the Director of the Agency's Department of Public Works (DPW) until she retired during the pendency of this case. On or about April 15, 1996, the grievant was appointed Assistant TCO for the DPW, in addition to performing the duties associated with her position as a Work Order Clerk. The grievant testified that she performed almost the full range of the TCO duties.
On September 28, 2000, the grievant was appointed as the primary TCO. On or about November 14, 2001, the grievant filed a grievance alleging that she was required to perform higher-graded duties and, therefore, was entitled to a temporary promotion. The grievant alleged that Agency Regulation, Joint Readiness Training Center and Fort Polk (JRTC and FP) Regulation 25-1, and Article XLIV of the parties' agreement require a temporary promotion when an employee is required to perform duties at a higher grade. [n2] The grievant requested a temporary promotion to GS-7 with back pay from April 1996 to the present date.
The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issues as follows:
(1) Was the grievance timely filed under the Agreement and is it arbitrable? (2) Did management violate Article XLIV, Section 7 of the Agreement? (3) If the Agreement was violated, what is the proper remedy?
Id. at 12.
Before the Arbitrator, the Agency argued that the grievance was not arbitrable because it was untimely and further concerned the classification of a position. The Arbitrator found that the grievance was timely and arbitrable because it raised a "continuing violation" of the Agreement and the Agency Regulation. [n3] Id. at 13.
As to the merits, the Arbitrator determined that resolution of the issue required him to first consider: [ v61 p9 ] whether, on assignment of the alternate TCO duties, the grievant was entitled to a temporary promotion to a GS-5 level; and whether, on assignment of the TCO duties, she was entitled to a temporary promotion to GS-7. The Arbitrator found that the grievant's assignment to perform the functions of a job that was rated higher than her position of a GS-4 Work Order Clerk "[wa]s not in question." Id. at 14. The Arbitrator examined the language in JRTC and FP Regulation 25-1, concerning the proper rank or grade level for an alternate TCO and TCO, and found that the regulation "reveal[ed] that civilians in these jobs should be compensated at least at GS-5 grade while serving as alternate TCO and at GS-7 . . . while serving as TCO." Id. Interpreting the regulation, the Arbitrator found that "if a civilian is assigned as alternate TCO, that civilian should receive pay equivalent to GS-5 (or higher). Similarly, if a person is assigned as TCO, that civilian should receive pay equivalent to GS-7 (or higher)." Id.
The Arbitrator stated that "if [g]rievant was temporarily promoted, [she] was entitled to receive GS-5 grade pay once she was assigned to perform the duties of the alternate TCO for more than 60 consecutive calendar days, as specified in Article XLIV, Section 7." Id. at 14-15. The Arbitrator found "absolutely no showing" that the grievant was not qualified for promotion. Id. at 15. The Arbitrator next turned to the question of "how long" any temporary promotion should be. Id.
In addressing this question, the Arbitrator first found that Article XLIV, Section 8 of the Agreement plainly states that "'[t]emporary promotions in excess of 120 calendar days will be accomplished competitively.'" Id. (quoting Article XLIV). The Arbitrator stated that Section 8 is "intended to place [the] Agency in compliance with the language of 5 C.F.R. §§ 335.102 and 335.103." [n4] Id. The Arbitrator also cited United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, 60 FLRA 46 (2004) (Veterans Affairs), wherein the Authority found that an award directing a temporary promotion in excess of 120 days was contrary to 5 C.F.R. § 335.103(c). Noting the aforementioned, the Arbitrator stated that "to effectuate the language of the [Agency] regulation[, JRTC and FP Regulation 25-1], [he] must either reconcile it with the temporary promotion language of the Agreement and the dictates of the applicable [F]ederal Regulation . . . or find some other basis for awarding the [g]rievant compensation at the higher grade levels of GS-5 and GS-7." Id. at 16.
The Arbitrator found that the Agency "plainly abused its discretion . . . by failing to permit [g]rievant to receive the higher-level pay of GS-5 while she worked as alternate TCO and by failing to permit [g]rievant to receive the higher-level pay of GS-7 while she worked as TCO until her retirement." Id. at 16-17. The Arbitrator stated that insofar as the Agency "is adamant in its insistence that [g]rievant was not 'promoted' to the position of alternate TCO or later to TCO, [he] must look to the remainder of the Agreement to determine whether there is some alternative basis for compensating [g]rievant at the level she should have been compensated consistent with [the] [JRTC and FP Regulation] 25-1." Id. at 17. The Arbitrator found a basis in "Article XLIV, Section 2 . . . ." Id. The Arbitrator found, therefore, that:
th[e] [g]rievant should be compensated for her long-term detail as alternate TCO at GS-5 level and then for her detail as TCO at GS-7 level until the date of her retirement. From both the standpoint of law and equity, such a result is in order . . . where [the] Agency ignored its own regulation and its own competitive promotional procedures in a manner which does not "justify the action of the Employer as being within the reasonable exercise of the Employer's discretion."
Id. at 17 (quoting Article XXXVIII, Section 9 of the parties' Agreement). [n5] In concluding, the Arbitrator stated that:
he lack[ed] the authority to mandate that [g]rievant receive a retroactive temporary promotion for the entire period of time during which she performed the alternate TCO . . . and the TCO duties in the DPW. However, [he found] that these two work assignments were details of [g]rievant "to a different position or set of duties" for which [g]rievant is entitled to receive the minimum level of pay specified in [JRTC and FP Regulation] 25-1 . . . . Thus, for the period of time during which she served as alternate TCO, [g]rievant shall be compensated at the rate of GS-5 . . .; and for the period of time during which she served as TCO, [g]rievant shall be compensated at the rate of GS-7 . . . .
Id. at 17-18. [ v61 p10 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award is ambiguous because although the Arbitrator seemed to find that he lacked the authority to mandate a retroactive temporary promotion for the grievant, the award still appears to require the Agency to compensate the grievant as a GS-5 from April 1996 through November 27, 2000 and as a GS-7 from November 28, 2000, until her retirement in June 2003, based on long-term details.
In discussing the uncertainty as to whether the Arbitrator effected a detail or a temporary promotion, the Agency references 5 C.F.R. § 300.301 regarding details, and 5 C.F.R. § 335.102 regarding temporary promotions. The Agency also cites AFGE, Local 2024, 30 FLRA 845, 846 (1987), and contends that this decision shows the difference between a detail and a temporary promotion. [n6] The Agency argues that "based on the clear language of the [a]ward, the Agency cannot legally comply with the [a]ward." Exceptions at 6.
The Agency also argues that "[t]he arbitrator crafted his award to assure compliance with the Fort Polk regulation, FP Reg 25-1. However, because the award is contrary to government[-]wide regulation it should be set aside." Id.
B. Union's Opposition
The Union asserts that the Agency's own regulations establish that the employee performing the duties of alternate TCO must be at least at the GS-7 level or higher and the Agency does not "Aseriously dispute that the [g]rievant was performing the TCO and alternate TCO duties." Opposition at 5.
The Union contends that the Agency's "exceptions are unclear as to exactly what is being argued[,]" however, "[i]t appears that the Agency is claiming that the Arbitrator Afound he lacked authority to grant a [retroactive] temporary promotion and then did so for a period of seven years." Id. The Union asserts that, based on Veterans Affairs, the Arbitrator found that he was not authorized to issue a temporary promotion greater than 120 days. The Union argues, therefore, that the Arbitrator "did not 'implicitly' promote the [g]rievant for seven years but rather found that he was limited to temporary promotions of 120 days." Id.
Also, the Union asserts that the Arbitrator did not order the grievant to be "paid for a detail but rather for the temporary promotion she should have been on instead of a detail[,]" which is consistent with Authority precedent. Id.
IV. Analysis and Conclusions
A. The Authority May Raise Sua Sponte and Resolve the Issue of Whether the Award Concerns a Classification Matter under § 7121(c)(5) of the Statute
The Authority reviews questions of law raised by exceptions to an arbitrator's 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 a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
In United States Dep't of Agriculture, Food and Consumer Serv., Dallas, Tex., 60 FLRA No. 176 (May 31, 2005) (FCS), an agency did not raise a claim before an arbitrator that § 7121(c) of the Statute barred the arbitrator from addressing a grievance, but then filed an exception to the award with the Authority raising this argument. The Authority reviewed its precedent on whether a party's failure to raise a claim before an arbitrator that § 7121(c) of the Statute bars the arbitrator from addressing a grievance precludes the Authority from addressing such a claim on exceptions to an award. For the reasons explained therein, the Authority concluded that such exceptions are properly before it for resolution even though the exceptions concerned arguments that were not raised before the arbitrator.
This case presents a different but related issue. In this case, the Agency argued before the Arbitrator that § 7121(c)(5) barred the Arbitrator from addressing the grievance but does not make that argument in its exceptions to the Authority. The issue before the Authority is whether, in these circumstances, the Authority may raise sua sponte and address the question of whether § 7121(c)(5) barred the Arbitrator from addressing the grievance. For the reasons set forth below, we find that the Authority may do so.
In FCS, the Authority noted that, under § 7121(c), negotiated grievance procedures Ashall not apply with respect to any grievance concerning-- [ v61 p11 ]
(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.
FCS, slip op. at 7-8.
The Authority further held:
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).
. . . .
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, . . . 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.
Id. at 8, 10 (footnote omitted).
In the instant case, the § 7121(c) issue was presented to the Arbitrator, but was not presented to the Authority in the Agency's exceptions. Nonetheless, just as 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, a party's failure to present an issue to the Authority where the case is before the Authority on exceptions cannot have the effect of creating jurisdiction in an arbitrator over a matter that Congress expressly excluded in § 7121(c) of the Statute.
In this regard, even in the absence of an exception challenging an arbitrator's jurisdiction, the Authority has held in a number of other instances that an arbitrator lacked jurisdiction over a grievance and that the resulting award is therefore deficient. For example, in NLRB, 35 FLRA 1116, 1124 (1990), the award concerned the reprimand and the removal of an employee who was a non-preference eligible, excepted service employee. The Authority found that, "[a]though not raised by the parties," it had to "first decide whether the [a]rbitrator had jurisdiction to resolve the grievances as to the reprimand and the removal . . . ." 35 FLRA at 1124. The Authority concluded that the grievant's removal was "a matter which is outside the scope of the negotiated grievance procedure and is not properly subject to arbitral review. In short, the [a]rbitrator had no jurisdiction as a matter of law to determine the merits of the grievant's removal." Id. Accordingly, the Authority found that this aspect of the award was contrary to law and set it aside. See also AFGE, Local 916, 47 FLRA 150, 153 (1993) ("The issue of an arbitrator's jurisdiction under law to hear a grievance is properly considered by the Authority, regardless of whether it has been raised by the parties.").
Similarly, in Dep't of Health and Human Services, Soc. Sec. Admin., 15 FLRA 714, 715-16 (1984), the grievance concerned the termination of a probationary employee. The arbitrator found that the grievance was arbitrable, and denied the grievance on the merits. Although no party challenged the arbitrator's determination that the grievance was arbitrable, the Authority sua sponte determined that the award was contrary to law because Congress did not intend that procedural protections for probationary employees be established through collective bargaining under the Statute. [n7] Accordingly, the Authority found that the award was contrary to law and set it aside, even where no party had challenged the arbitrator's finding that the grievance was arbitrable.
In each of these instances, Congress made it clear that grievances could not be filed concerning certain subject matters. Consequently, in each instance, the Authority set aside arbitrators' awards resolving those [ v61 p12 ] grievances, despite the fact that no exceptions on the jurisdictional point were filed by any party.
Similarly, Congress has made it clear that grievances concerning the enumerated matters in § 7121(c) are excluded from arbitration procedures. Consistent with Authority precedent, these statutory exclusions apply irrespective of whether a party makes such a claim before the Authority. To hold otherwise would be inconsistent with clearly expressed congressional intent to bar grievances over such matters altogether.
As a result, the Authority has jurisdiction to address the effect of § 7121(c)(5) upon this case, and we will address, sua sponte, that issue.
B. The Award Is Deficient under § 7121(c)(5) of the Statute
The Authority has construed the term "classification" in § 7121(c)(5) as involving "'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.'" Soc. Sec. Admin., Office of Hearings and Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999) (quoting 5 C.F.R. § 511.101(c)).
The Authority has distinguished between two situations in assessing whether a grievance concerns the classification of a position. Where the substance of a grievance concerns the grade level of the duties permanently assigned to, and performed by, the grievant, the Authority finds that the grievance concerns the classification of a position within the meaning of § 7121(c)(5). United States Dep't of Hous. & Urban Dev., La. State Office, New Orleans, La., 53 FLRA 1611, 1616 (1998). However, where the substance of the grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the established duties of a higher-graded position, the Authority has long held that the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). Id.
Moreover, the Authority has also noted the need to distinguish between temporary promotion claims based upon duties temporarily assigned to an employee (which is properly a temporary promotion claim) and temporary promotion claims based upon duties that are not temporarily assigned to an employee (which is not properly a temporary promotion claim). LIUNA, Local 28, 56 FLRA 324, 326 n.2 (2000). In the present instance, it is apparent that the grievant was not handling the alternate TCO and TCO duties on a temporary basis. The length of the duties involved (over five years) and the formal nature of the assignment of the alternate TCO and TCO duties lead to this conclusion, especially in the absence of any evidence to the contrary. As such, the entitlement to additional compensation for the periods of time awarded by the Arbitrator pertain to the permanent duties of the grievant's position, and constitute a classification determination under § 7121(c)(5). As the Arbitrator's finding constitutes a classification determination, it is contrary to § 7121(c)(5) of the Statute and must be set aside.
V. Decision
The award is set aside as contrary to § 7121(c)(5) of the Statute. [n8] [ v61 p13 ]
APPENDIX
5 C.F.R. § 300.301 provides, in relevant part, as follows:
(a) In accordance with 5 U.S.C. 3341, an agency may detail an employee in the competitive service to a position in either the competitive or excepted service.
(b) In accordance with 5 U.S.C. 3341, an agency may detail an employee in the excepted service to a position in the excepted service and may also detail an excepted service employee serving under Schedule A, Schedule B, or . . . to a position in the competitive service.
(c) Any other detail of an employee in the excepted service to a position in the competitive service may be made only with the prior approval of the Office of Personnel Management or under a delegated agreement between the agency and OPM.
5 C.F.R. § 335.102 and 103 provides, in relevant part, as follows:
§ 335.102 [concerns an agency's authority to promote, demote, or reassign an employee.]
§ 335.103 Agency promotion programs.
. . . .
(c) Covered personnel actions--(1) Competitive actions. Except as provided in paragraphs (c)(2) and (3) of this section, competitive procedures in agency promotion plans apply to all promotions under § 335.102 of this part and to the following actions:
(i) Time-limited promotions under § 335.102(f) of this part for more than 120 days to higher graded positions (prior service during the preceding 12 months under noncompetitive time-limited promotions and noncompetitive details to higher graded positions counts toward the 120-day total). A temporary promotion may be made permanent without further competition provided the temporary promotion was originally made under competitive procedures and the fact that might lead to a permanent promotion was made known to all potential candidates[.]
. . . .
(2) Noncompetitive actions. Competitive procedures do not apply to:
(i) A promotion resulting from the upgrading of a position without significant change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error[.]
. . . .
(3) Discretionary actions. Agencies may at their discretion except the following actions from competitive procedures of this section:
. . . .
(iii) A temporary promotion, or detail to a higher grade position or a position with known promotion potential, of 120 days or less[.]
Footnote # 1 for 61 FLRA No. 3 - Authority's Decision
Member Pope's dissenting opinion is set forth at the end of this decision.
Footnote # 2 for 61 FLRA No. 3 - Authority's Decision
A copy of the Agency regulation is not contained in the record. Article XLIV provides in pertinent part as follows:
Details and Temporary Promotions
. . . .
Section 7. Temporary Promotions.
When all requirements for promotion are met and an employee is assigned to a higher graded position for more than 60 consecutive calendar days, a temporary promotion will be effected.
Section 8. Requirement for Competition.
Temporary promotions in excess of 120 calendar days will be accomplished competitively.
Award at 5.
Footnote # 3 for 61 FLRA No. 3 - Authority's Decision
The Agency does not except to the Arbitrator's finding that the grievance was timely and arbitrable.
Footnote # 4 for 61 FLRA No. 3 - Authority's Decision
The relevant provisions of 5 C.F.R. § 335.103 are set forth in the Appendix to this decision.
Footnote # 5 for 61 FLRA No. 3 - Authority's Decision
The record does not contain a copy of Article XLIV, Section 2 or Article XXXVIII, Section 9 of the parties' agreement.
Footnote # 6 for 61 FLRA No. 3 - Authority's Decision
The relevant text of 5 C.F.R. § 300.301 is set forth in the Appendix to this decision.
Footnote # 7 for 61 FLRA No. 3 - Authority's Decision
The case was before the Authority on exceptions filed by the union challenging the merits of the award. The agency did not file any exception to the award.
Footnote # 8 for 61 FLRA No. 3 - Authority's Decision
In view of this determination, it is unnecessary to address the remaining exceptions.
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.
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).