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56 FLRA No. 15
U.S. Dept. of Health and Human Services Denver, Colorado and National Treasury Employees Union Chapter 235 (DiFalco, Arbitrator), 0-AR-3215 (Decided March 3, 2000)
The Authority concluded that the Agency failed to establish that the award was deficient under section 7122(a) of the Statute. The Authority rejected the allegation that the award was contrary to law. Under section 7121(c)(5) of the Statute, grievances concerning the classification of any position which does not result in the reduction of grade or pay of an employee are removed from the scope of the negotiated grievance procedures. 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 assigned to, and performed by the grievant, the grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. However, where the substance of a grievance concerns whether the grievant is entitled to a temporary promotion by reason of having performed the established duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of section 7121(c)(5) of the Statute.
Here, the Authority noted that as the substance of the grievance concerned whether the grievant was entitled to a temporary promotion under the parties' agreement for performing previously-classified duties, the award did not concern the classification of a position and therefore, was not deficient as contrary to section 7121(c)(5) of the Statute. The Authority also rejected the allegation that the award was based on a nonfact.