23:0141(16)AR - Agriculture, Federal Grain Inspection Service and AFGE Local 3157 -- 1986 FLRAdec AR



[ v23 p141 ]
23:0141(16)AR
The decision of the Authority follows:


 23 FLRA No. 16
 
 U.S. DEPARTMENT OF AGRICULTURE 
 FEDERAL GRAIN INSPECTION SERVICE
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 3157
 Union
 
                                            Case No. 0-AR-1084
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Paul Barron filed by the Activity under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition
 and the Office of Personnel Management filed a brief as an amicus
 curiae.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the furlough of the grievant as
 the result of a reduction-in-force.  A grievance was filed and submitted
 to arbitration protesting the Activity's denial of retreat rights to the
 grievant to the position of agricultural commodity technican, GS-5.
 According to the Arbitrator, the grievant was initially appointed in the
 Federal service as an agricultural commodity technician, GS-7, and
 subsequently was promoted from that position.  As a result of an earlier
 reduction-in-force, the grievant at the time of the disputed
 reduction-in-force held the position of agricultural commodity grader,
 GS-7.  The Activity had denied the grievant retreat rights under FPM
 chapter 351, subchapter 4-3b which entitles an employee to retreat to a
 position from or through which the employees had been promoted or to a
 position substantially the same as a position from or through which the
 employee had been promoted.  The Activity had determined that the
 position of agricultural commodity technician, GS-5, was not a position
 from or through which the grievant had been promoted.  The Activity had
 also determined that the GS-5 technician position was not substantially
 the same as any such position because it was not at the same grade level
 of any position from or through which the grievant had been promoted.
 
    The Arbitrator ruled that the grievant was entitled to have retreated
 to the position of agricultural commodity technician, GS-5, at the time
 of the reduction-in-force.  He concluded that the intention of the FPM
 is to allow retreat to an entry level position in the situation, as in
 this case, where the employee had been appointed at the higher-grade
 level of a position series because of the employee's experience and
 where the duties of the position at the different grade levels are
 essentially the same.  He stated that in a real sense the employee when
 appointed at a higher grade is promoted through the entry level
 position.  The Arbitrator also rejected the Activity's argument under
 FPM chapter 351, subchapter 4-38 that in order to be substantially the
 same, positions must be at the same grade level.  The Arbitrator noted
 that the argument was based on subchapter 4-3b(3) /*/ essentially
 providing that in order to be substantially the same, the two positions
 must be enough alike that they would be "in the same competitive level
 if they were in the same competitive area." The Arbitrator acknowledged
 that in order to be "in the same competitive level," FPM chapter 351,
 subchapter 2-3 requires that they be at the same grade level.  However,
 the Arbitrator rejected the contention that this competitive level
 limitation requiring positions to be at the same grade level applied in
 this case.  He explained that the position comparison of subchapter
 4-3b(3), incorporating the competitive level requirement, is between
 positions in different competitive areas and that there is no such
 requirements when the position comparison is between positions in the
 same competitive area as in this case.  He observed that this
 interpretation was supported by the provision in subchapter 4-3b that
 described retreat rights in terms of a "substantially similar position"
 rather than a position that is "substantially the same" as a position
 from or through which the employee had been promoted.  Accordingly, the
 Arbitrator substained the grievance and awarded the grievant backpay for
 any wages lost as the result of his furlough.
 
                              III.  EXCEPTION
 
                      A.  Contentions of the Activity
 
    The Activity contends that the award is deficient as contrary to FPM
 chapter 351, subchapter 4-3b.  The Activity asserts that the retreat
 rights provided by regulation are narrow and specific and that the
 Arbitrator has granted the grievant retreat to a position contrary to
 the FPM.  In particular, the Activity maintains that because the
 grievant was never promoted from the position of agricultural commodity
 technician, GS-5, the grievant would be entitled to retreat to that
 position only if it were "substantially the same," within the meaning of
 FPM chapter 351, subchapter 4-3b, as the position of agricultural
 commodity technician, GS-7, from which the grievant had been promoted.
 The Activity argues that in order to be substantially the same under
 subchapter 4-3b, the positions must be in the same competitive level
 which requires that they must be at the same grade level.  Because the
 position of agricultural commodity technician, GS-5, and the position of
 agricultural commodity technician, GS-7, are not at the same grade
 level, the Activity argues that the grievant was not entitled to retreat
 to the GS-5 technician position.  Moreover, the Activity argues that the
 Arbitrator therefore misinterpreted subchapter 4-3b when he held that
 the intent of the FPM was to allow retreat to entry level positions in
 situations such as presented in this case.  The Activity also argues
 that the Arbitrator misinterpreted subchapter 4-3b when he held that the
 competitive level limitation, requiring that positions be at the same
 grade level to be substantially the same, only applies when the
 positions being compared are in different competitive areas.  The
 Activity asserts that the requirement applies regardless of competitive
 area and that one instance of the use of an interchangeable term to
 "substantially the same" in subchapter 4-3b does not alter the
 requirement.
 
                        B.  Opposition ofthe Union
 
    In its opposition the Union contends that the award granting the
 grievant retreat rights in the circumstances of this case has not been
 shown to be contrary to any express provisions of FPM chapter 351.  The
 Union maintains that the arguments presented in support of the exception
 are the same arguments presented to the Arbitrator and properly rejected
 by him.
 
         C.  Position of the Office of Personnel Management (OPM)
 
    In agreement with the Activity, OPM maintains that the intent of the
 FPM is not to allow retreat to entry level positions in situations such
 as presented in this case.  OPM specifically asserts, contrary to the
 ruling of the Arbitrator, that FPM chapter 351, subchapter 4-3b requires
 that positions must be in the same competitive level in order to be
 substantially the same, regardless of competitive area.  OPM notes that
 in order to be in the same competitive level, positions must be at the
 same grade level.  OPM also agrees with the Activity that the one
 instance of the use of the term "substantially similar" rather than
 "substantially the same" does not alter this requirement.  OPM maintains
 that under FPM chapter 351, subchapter 4-3b, the grievant was not
 entitled to retreat to the GS-5 technician position because it was not a
 position from or through which he had been promoted and because it was
 not a position substantially the same as a position from or through
 which he had been promoted since it was at a lower grade level.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We conclude that the award is deficient by granting the grievant
 retreat rights to the position of agricultural commodity technician,
 GS-5.  For the reasons that follow, we find that this is not a position
 from which the grievant was promoted or a position essentially identical
 to or substantially the same as a position from which the grievant was
 promoted.
 
    The Merit Systems Protection Board has repeatedly recognized that the
 right of retreat is narrow and specific.  See Shell v. Department of
 Labor, MSPB Docket no. CHO3518410511 (March 25, 1985).  Specifically, at
 all relevant times, an employee has been entitled under 5 CFR part 351,
 subpart G to retreat only to the same position or an essentially
 identical position previously held by the employee.  The Board has noted
 that OPM has elaborated on retreat rights in FPM chapter 351, subchapter
 4-3b, Johnson v. HUD, MSPB Docket No. DE03518310282 (August 2, 1984),
 and holds that in order for an employee to exercise the right of
 retreat, the employee must have been promoted from or through the
 position to which such right is claimed or promoted from or through a
 position that is substantially the same or substantially similar.  See
 Berry v.  Department of Energy, MSPB Docket No. DC03518211433 (May 8,
 1984) and Gallegos v. DoD, 9 MSPB 467 (1982).  In addition, the Board
 has cited and applied the interpretation of these regulations that the
 Activity and OPM assert in this case.  Thus, the Board has indicated
 that it will find a position to be substantially the same as a position
 from which the employee was promoted only when the positions are
 sufficiently alike so that they would be in the same competitive level.
 Lower v. HHS, MSPB Docket No. DC03518410189 (October 1, 1984).
 Similarly, the Board has also cited OPM'S interpretation of these
 regulations to provide that appointments from OPM registers are not
 promotions and therefore may not be used when determining an employee's
 retreat rights.  Shell v. Department of Labor.
 
    In view of the consistent interpretation of these regulations by OPM,
 and in view of MSPBs adoption and application of this interpretation in
 resolving retreat right disputes in numerous reduction-in-force cases,
 we conclude that the Arbitrator's award is contrary to 5 CFR part 351,
 subpart G and FPM chapter 351, subchapter 4-3b.  We find that there is
 no right of retreat to entry level positions in situations such as
 presented in this case.  An employee is not promoted through the entry
 level position when the employee is appointed at a higher grade level.
 See Shell v. Department of Labor.  We further find, contrary to the
 Arbitrator, that under these regulations the grievant was not entitled
 to retreat to the GS-5 technician position because it was not a position
 essentially identical to or substantially the same as the GS-7
 technician position.  Under the regulations there was n