32:0426(65)AR - - FAA, Atlantic City, NJ and NFFE Local 1340 - - 1988 FLRAdec AR - - v32 p426

[ v32 p426 ]
The decision of the Authority follows:

32 FLRA No. 65







Case No. O-AR-1472


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Gladys Gershenfeld. The Arbitrator found that the Agency did not violate the parties' collective bargaining agreement by failing to accelerate the promotions of six GS-7 Computer Programmers to the GS-9 level after 6 months of intensive training. The Arbitrator also found that the injury to the grievants was not of the magnitude associated with the doctrine of equitable estoppel in cases against the Government. Consequently, she denied the grievance.

The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's rules and regulations. The Agency filed an opposition to the Union's exceptions.

We conclude that the Union has not established that the Arbitrator's award is contrary to law, regulation, or the parties' negotiated agreement. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency entered into a training agreement with the Office of Personnel Management (OPM) for a 2-year period, April 1984 to April 1986, in order to improve its competitive position in recruiting computer programmers. The agreement authorized the accelerated promotion of GS-7 Computer Programmers to GS-9 positions after 6 months of intensive training. In September 1984, the six grievants entered a cooperative program which required alternating periods of college classes with work experience. The parties do not dispute that the grievants understood that they would receive intensive training after their appointment as GS-7 Computer Programmers and, consequently, would be eligible for accelerated promotions to GS-9 after six months at the GS-7 level.

In May 1986, after completion of the cooperative requirements and their graduation from a college cooperative program, the grievants were appointed as GS-7 Computer Programmers. They completed 6 months of training and were recommended for accelerated promotions by their supervisors. However, in January 1987, the grievants were denied accelerated promotions and required to serve the standard time of 1 year in grade prior to promotion to the GS-9 level.

The Agency unsuccessfully attempted to obtain authorization from OPM to grant the grievants accelerated promotions. In a letter to an OPM regional director, the Agency argued that the grievants accepted GS-7 computer programmer positions on the assumption that they would be promoted to the GS-9 level on completion of the training agreement requirements. OPM responded that because the training agreement was not in effect in May 1986, when the six grievants were appointed as GS-7 Computer Programmers, they were not covered by the agreement. According to OPM, the grievants were required to meet the full requirements for promotion to GS-9 as described in the appropriate qualification standards. Relying on OPM's determination, the Agency denied the grievants accelerated promotions.

The Arbitrator framed the issue as follows:

Did the Employer violate Article 15, Section 9, of the Agreement when it denied promotions to the GS-9 level to the grievants after six months at the GS-7 level?

If so, what shall the remedy be?

Award at 4. She noted that according to Article 15, Section 9 of the parties' agreement, "all legal, regulatory and administrative requirements" must be met before non-competitive promotions could be effected. Further, she cited 5 C.F.R. § 300.602(b)(1), which states that an employee who is in a line of work classified at two-grade intervals must serve 1 year in a position two grades lower prior to advancement. Finally, the Arbitrator noted that 5 C.F.R. § 300.603(a)(1) and (4) provides that exceptions are permitted when an agency has either a negotiated agreement with OPM or prior approval from OPM "to avoid undue hardship or inequity."

The Union argued that the terms of the training agreement could be interpreted to cover the grievants. However, the Arbitrator concluded that the training agreement "restricts the accelerated promotion to employees who have actually attained the GS-7 level." Award at 8. Since the grievants were appointed as GS-7 Computer Programmers after the agreement expired, the Arbitrator held they were not covered by its terms. She noted that the Agency was correct in stating that it could not act alone in taking action that is contrary to OPM's interpretation of the training agreement nor could it act alone to authorize advancement under 5 C.F.R. § 300.603(a)(4). Award at 13-14. She also found that the Agency established that OPM has the authority to interpret its regulations. Award at 14.

The Arbitrator considered the Union's argument that the grievants relied on the information received from Agency program administrators and managers to make life and career decisions to their substantial detriment. The Arbitrator found that while the grievants were "certainly disappointed with the denial of accelerated promotion, the evidence does not establish that they would have refused employment with the FAA if they had more complete information." Award at 11. Thus, she concluded that "the injury to the grievants was not of the magnitude associated with the doctrine of equitable estoppel in cases against the Government." Award at 15. In conclusion, the Arbitrator found that the Agency did not violate Article 15, Section 9 of the parties' agreement when it denied the grievants promotions to GS-9 after 6 months at the GS-7 level.

III. Positions of the Parties

A. Union's Exceptions

The Union requests that the Authority remand this case to the Arbitrator with "appropriate guidance for redetermination of the decision." Union's Exceptions at 2. According to the Union, the Arbitrator has not been appropriately guided by Authority precedent and principles of equitable estoppel or properly exercised her judgment in reviewing OPM's application of rules and regulations. The Union cites American Federation of Government Employees, Local 1568 and U.S. Department of Housing and Urban Development, 21 FLRA 781 (1986) (AFGE, Local 1568 and HUD), which, it contends, established that an arbitrator may overrule OPM on an interpretation of a personnel rule or regulation.

In addition, the Union states that the Arbitrator erred when she failed to conclude that the injury to the grievants warranted the application of equitable estoppel against the Government. Union's Exceptions at 1. The Union points out that in William J. Elder and Stephen M. Owen, 56 Comp. Gen. 85 (1976) (Elder and Owen), where the Comptroller General denied relief for overpayment of relocation expenses, the amounts of money at issue were $1143.37 and $231.25. Here, the Union notes that the six grievants will lose more than $45,000 as a result of the denial of accelerated promotions, assuming they progress normally to the GS-12 level. Additionally, the Union cites Cinciarelli v. Reagan, 729 F.2d 801 (D.C. Cir. 1984) (Cinciarelli), a case concerning attorney's fees in which equitable estoppel was applied.

B. Agency's Opposition

The Agency asserts that the Arbitrator's award is consistent with Government-wide regulations. Specifically, the Agency states that the Arbitrator correctly determined that 5 C.F.R. § 300.602 does not permit management to grant the grievants accelerated promotions and that conditions in 5 C.F.R. § 300.603 were not met. Furthermore, the Agency states that the Arbitrator recognized that even if retroactive promotion of the grievants were an equitable remedy, the Agency lacks authority to grant it. Finally, the Agency contends that the Union's arguments are not supported by the cases it cites.

IV. Analysis and Conclusion

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

The Union contends that the Arbitrator erroneously assumed "that decisions regarding application of rules or regulations where choices and judgment are involved are also not reviewable by herself, the arbitrator." Union's Exceptions at 1. In support, the Union cites AFGE, Local 1568 and HUD. We find that the Union's reliance on AFGE, Local 1568 and HUD is misplaced. The issue in that case was whether an OPM official's interpretation of an FPM Letter controlled the disposition of the case. The Authority found that the OPM letter was an advisory opinion and, thus, was without controlling significance in the case.

In contrast, the issue in this case concerns regulations set forth in 5 C.F.R. Part 300, Subpart F pertaining to time-in-grade restrictions. These regulations have been promulgated by OPM and constitute mandatory policy generally applicable in any advancement of civilian employees of the Federal Government from a competitive or excepted position that is subject to the General Schedule. 5 C.F.R. § 300.601(a) (1988). Therefore, they are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 751-55 (1980).

The Arbitrator found that 5 C.F.R. §§ 300.602(b)(1) and 300.603(a)(1) and (4) were relevant to the question of whether the grievants were entitled to accelerated promotions. 5 C.F.R. § 300.602(b)(1) provides that:

An agency may advance an employee to a position at GS-6 through GS-11 only after he or she has served a minimum of--

(1) One year in a position two grades lower, when the position to which he or she is advanced is in a line of work properly classified at two-grade intervals.

However, 5 C.F.R. § 300.603(a) provides that "section 300.602 does not prevent accelerated promotions" if an employee can qualify under one of the exceptions set out elsewhere in section 300.603. The two exceptions at issue in this case, 5 C.F.R. § 300.603(a)(1) and (4), permit accelerated promotions when:

(1) The advancement is in accordance with a training agreement which has been approved by the Office [OPM]. . . ; [or]

(4) The head of the agency or his or her designee, with the prior approval of the Office or under agreement negotiated with the Office, authorizes the advancement to avoid undue hardship or inequity in an individual case of meritorious nature.

The Arbitrator found that the cited C.F.R. provisions were binding on the Agency and the Arbitrator. Further, she noted that OPM has the authority to interpret its regulations. Award at 14. The Arbitrator found that OPM determined that the grievants were not covered by the training agreement. Id. Therefore, the grievants were not eligible for accelerated promotion under the exception in 5 C.F.R. § 300.603(a)(1). Award at 3. Furthermore, there is no evidence in the record to establish that OPM granted approval to advance the grievants to the GS-9 level under the exception for hardship or inequity in 5 C.F.R. § 300.603(a)(4).

Hence, we conclude that without specific approval from OPM or the existence of a training agreement, the Agency had no authority to grant accelerated promotions. See Veterans Administration, V.A. Medical Center, Muskogee, Oklahoma and American Federation of Government Employees, Local 2250, 20 FLRA 441 (1985) (contrary to arbitration award, agency must comply with minimum qualification requirements in 5 C.F.R Part 300 in effecting promotions). Addition