44:1218(99)AR - - GSA, Region 9 and AFGE Council 236 - - 1992 FLRAdec AR - - v44 p1218



[ v44 p1218 ]
44:1218(99)AR
The decision of the Authority follows:


44 FLRA No. 99

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

GENERAL SERVICES ADMINISTRATION

REGION 9

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

0-AR-2204

DECISION

May 13, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Thomas Angelo filed by the Union 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 did not file an opposition to the exceptions.

A grievance was filed alleging that the Agency failed to qualify the grievant for the highest previous pay rate when he was competitively selected for the position of GS-11 Contracting Specialist. The Arbitrator denied the grievance. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In April 1991, the grievant was selected for the position of GS-11 Contracting Specialist. When the grievant received his notice of pay rate, he inquired as to his eligibility for an increase in pay based on the Agency's "highest previous rate" rule. Award at 3. That rule provides:

The GSA rule in pay setting cases is to give credit to employees for recent and directly related work experience which will clearly and favorably impact performance in the new position. However . . . if the use of the highest previous rate (HPR) is inappropriate, a step can be selected which is allowable by law or regulation and is more than step 1 . . . . In some situations, step 1 is appropriate; for example, the work experience for which the HPR was earned is over three years old . . . Also, the Personnel Officer shall review the rate to be set in light of . . . supply of quality applicants . . . .

Id. (quoting Joint Exhibit 2).

The grievant contended that he had performed qualifying higher-graded duties while stationed in Fairbanks, Alaska during 1981-83. According to the grievant, those duties constituted GS-11 contracting work that was applicable under the highest previous rate regulation. The Agency refused to give the grievant a higher rate of pay.

The Union filed a grievance on July 12, 1991. In denying the grievance on the merits, the Agency relied "on the stale nature of the [g]rievant's experience, contended that the cited experience was only incidental in nature and took no more that 10% of his time, and the work was not of the GS-11 level in any event." Id. at 6.

The grievance was not resolved and was submitted to arbitration. The parties stipulated to the following issues:

Is the grievance timely[?]

If so, did the Agency violate OAD P 5410.1 in denying 'highest previous rate' to [the grievant][?]

If so, what should the remedy be[?]

Id. at 2.

The Arbitrator determined that the grievance was timely filed. In addressing whether the grievant was entitled to a higher rate of pay under the highest previous rate rule, the Arbitrator first noted that the highest previous rate rule is defined by Agency regulation OAD P 5410.1 and not the parties' collective bargaining agreement. The Arbitrator stated that the terms of the regulation would be "afforded their reasonable, plain meaning[.]" Id. at 8-9. Noting the requirement in the Agency's regulation that work experience be "recent," the Arbitrator stated that "[t]he Agency has defined this element to mean experience within the prior three years, and I lack authority to override or ignore this requirement." Id. at 9. The Arbitrator found that "because the [g]rievant's experience took place in 1981-[8]3, it [was] not 'recent' within the meaning of the regulation." Id. Therefore, the Arbitrator found that the grievant's prior experience "does not satisfy the Agency's requirements in OAD P 5410.1." Id. at 10. Further, with respect to the Agency's argument that the grievant did not qualify for the highest previous rate because his work experience in Alaska satisfied only the GS-6 level, the Arbitrator found that "the point [was] moot since the experience is stale in any event." Id. Accordingly, the Arbitrator concluded that "the Agency did not violate the highest previous rate rule when it denied the [g]rievant credit for his work in Fairbanks . . . ." Id.

Based on the above findings, the Arbitrator denied the grievance.

III. Exceptions

The Union contends that the award is contrary to law because "the Arbitrator misapplied and misinterpreted an Agency rule which is contrary to the Government-[w]ide Regulations, when he found that he could not apply that past experience and denied the grievance." Exceptions at 1-2.

The Union argues that the Agency's regulation "authorizes 'highest previous rate' for recent and directly-related experience which will clearly and favorably impact performance in the new position." Id. at 2. The Union also argues that nothing in the Agency's regulation "requires a three (3) year limitation on directly related experience to the new duties." Id. (emphasis deleted).

The Union notes that Federal Personnel Manual (FPM) chapter 531, subchapter 2-4, a Government-wide regulation, "states the specific requirements for applying the 'highest previous rate'" and argues that this regulation does not require a 3-year bar. Id. at 2-3. The Union argues that "[t]he [G]overnment-wide regulation[] is the rule that should govern in applying the 'highest previous rate[.']" Id. at 3.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the award is deficient.

Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056 (1991) (citing U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990)).

We find that the Union has failed to establish that the Arbitrator's award conflicts with OAD P 5410.1. It is clear that the Union's interpretation of the Agency's regulation differs from that of the Arbitrator. The Arbitrator determined that, under the regulation, only credit for recent experience--that is, experience within the prior 3 years--can be used to grant the highest previous rate. The Union has not shown that the Arbitrator's interpretation conflicts with the Agency's regulation. Therefore, we find that the Union has not demonstrated that the Arbitrator's finding, that the grievant's experience was not recent because it was not gained within the prior 3 years, is inconsistent with the Agency's regulation. See, for example, U.S. Department of Veterans Affairs, Medical Center, Atlanta, Georgia and National Federation of Federal Employees, Local 2102, 44 FLRA 427, 433 (1992); U.S. Department of Defense, Dependent Schools and Overseas Education Association, 37 FLRA 226, 233 (1990), affirmed mem. sub nom. Hartmann v. FLRA, No. 90-2699 (D.D.C. Apr. 10, 1991).

Furthermore, the Union fails to demonstrate that FPM chapter 531, subchapter 2-4 provides any basis for finding the award deficient. That provision states, in part, that "[w]hen an employee moves into a position by any means other than [a] new appointment, he/she may be paid at any rate for his/her grade which does not exceed his/her highest previous rate[.]" FPM chapter 531, subchapter 2-4a.

The Union has not established, and it is not apparent to us, that the provision requires an agency to pay an employee at the highest previous rate or that it precludes an agency from establishing time limits governing the applicability of the employee's previous experience. Accordingly, we find nothing in the award that establishes that the award is inconsistent with FPM chapter 531, subchapter 2-4.

Accordingly, we will deny the Union's exceptions.

V. Decision

The Union's exceptio