51:1487(120)AR - IRS,BROOKLYN DISTRICT,BROOKLYN, NEW YORK and NTEU -- 1996 FLRAdec AR



[ v51 p1487]
51:1487(120)AR
The decision of the Authority follows:


 51 FLRA No. 120                                  
 
              FEDERAL LABOR RELATIONS AUTHORITY
                       WASHINGTON, D.C.
                               
                            _____
                               
               U.S. DEPARTMENT OF THE TREASURY
                   INTERNAL REVENUE SERVICE
                      BROOKLYN DISTRICT
                      BROOKLYN, NEW YORK
                           (Agency)
                               
                             and
                               
              NATIONAL TREASURY EMPLOYEES UNION
                           (Union)
                               
                          0-AR-2636
                               
                            _____
                               
                           DECISION
                               
                        June 28, 1996
                               
                            _____
                               
 Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz
                       and Donald S. Wasserman, Members.
 
 I.   Statement of the Case
 
      This matter is before the Authority on exceptions to an
 award of Arbitrator Randi H. Abramsky filed by the Agency under
 section 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 requesting that the
 grievant, who was hired at the GS-5 level, be granted a
 retroactive promotion to the GS-7 level.  For the following
 reasons, we find that the award is deficient under section 7122(a)
 of the Statute, and we set aside the award.
 
 II.  Arbitrator's Award
 
      In seeking employment with the Federal Government, the
 grievant took a civil service examination administered by the
 Office of Personnel Management (OPM).  OPM sent the grievant a
 notice rating him eligible for GS-5 level positions, but
 ineligible for GS-7 level positions, and providing information as
 to how to appeal the results and the time limit for doing so.  The
 grievant then contacted the Agency for information on how to
 obtain a higher rating.  He was advised to submit an SF-171,
 Application for Federal Employment, to the Agency.  Thereafter, in
 a conversation with another employee of the Agency, the grievant
 expressed concern about his rating and was told that he should
 have appealed to OPM and that it was too late to do so. 
 Subsequently, the Agency offered the grievant a position as a GS-5
 Revenue Officer and the grievant accepted the offer.
   
      Shortly thereafter, the Agency's Chief of Personnel  sent
 a letter to OPM stating that "we feel that [the grievant] meets
 the requirement standards for the grade 7[]" and requesting OPM to
 reevaluate the grievant as eligible at the GS-7 level and make the
 reevaluation retroactive.  Award at 9. The letter also requested
 OPM to amend the GS-7 certificate to include the grievant's name
 and stated that he was "well within reach."  Id. at 10.  In
 response, OPM stated that it could not grant the Agency's requests
 because the grievant had not appealed his rating at the GS-7 level
 and the absence of his name from the GS-7 certificate was not the
 result of any fault by OPM.
   
      Subsequently, the Union filed a grievance over the
 grievant's rating, alleging that because of misinformation from
 the Agency, he had not been properly advised of his rights to
 contest his rating.  During the processing of the grievance, the
 Agency requested approval from OPM to waive the time-in-grade
 requirement  and promote the grievant to the GS-7 level.  OPM
 denied the request because the grievant had never established
 eligibility for that level.  The Union then suggested that under
 Federal Personnel Manual (FPM) Letter 300-34, the Agency itself
 could waive the time-in-grade requirement to promote the grievant
 to correct an inequity to the grievant.  The Agency disagreed
 because, in its view, the criteria in the FPM Letter were not
 satisfied in that neither the Agency nor OPM had made an
 administrative error which caused inequity to the grievant.  The
 grievance was submitted to arbitration.
 
      As relevant here, the Arbitrator framed the issues as
 whether the grievance was timely filed and whether the Agency
 violated, misinterpreted, or misapplied any law, rule, or
 regulation affecting the grievant's conditions of employment.  The
 Arbitrator found that the grievance was timely filed.  With
 respect to FPM Letter 300-34, the Arbitrator found that it applies
 when there is "undue inequity resulting from all administrative
 errors that prevent an employee from reaching the grade they
 otherwise would have attained, including errors caused by entities
 other than the employing agency."  Award at 29.  The Arbitrator
 found that, "by the [Agency's] own admission [in its letter to
 OPM], there was administrative error in the [g]rievant's rating .
 . . by the OPM that prevented the [g]rievant from reaching a grade
 he otherwise would have attained."  Id.  Additionally, the
 Arbitrator found that the "administrative error was
 unavoidable[,]" within the meaning of 5 C.F.R.  300.603(d)(2). 
 Id. at 30.  The Arbitrator found that the information provided by
 OPM concerning how to seek review of the examination results was
 not clear and this lack of clarity was "exacerbated" by the advice
 the grievant received from the Agency.  Award at 31.    
 
      Finally, the Arbitrator concluded that the administrative
 error in the grievant's rating clearly caused an undue inequity to
 the grievant because he was paid less than if he had been rated as
 a GS-7.  Consequently, the Arbitrator concluded that, at the time
 the Agency was requested to exercise its discretion under the FPM
 Letter, the administrative error could be corrected only by waiver
 of the time-in-grade requirement.  In these circumstances, the
 Arbitrator found that the Agency had misinterpreted or misapplied
 FPM Letter 300-34 and 5 C.F.R.  300.603(d), and she sustained the
 grievance.  The Arbitrator ordered the Agency to retroactively
 waive the time-in-grade requirement, promote the grievant, and pay
 him backpay plus interest.
 
 III. Exceptions
 
      A.  Agency's Contentions
 
      As relevant here, the Agency contends that the award is
 contrary to FPM Letter 300-34 and 5 C.F.R.  300.603(d). 
 Specifically, the Agency claims that:  (1) there was no evidence
 that the grievant met the qualifications for the GS-7 level;
 (2) the Arbitrator's determination that the "administrative error
 was unavoidable" is contrary to the plain language of 5 C.F.R.
  300.603(d); and (3) even if there was proven administrative
 error, the Agency could not be required to waive the time-in-grade
 requirements under the regulations.
 
      B.  Union's Opposition
 
      The Union contends that the Agency's exceptions constitute
 nothing more than disagreement with the Arbitrator's
 interpretation and application of the agreement. According to the
 Union, the Arbitrator properly applied the pertinent regulations
 to the facts of this case.  The Union maintains that the evidence
 supports the Arbitrator's conclusion that the grievant met the
 GS-7 qualification requirements.  The Union also contends that the
 misstatement of the Chief of Personnel's title was not an error
 central to the result of the award.  Finally, the Union asserts
 that the award is not contrary to section 7106(b)(1). 
  
 IV.  Analysis and Conclusions
 
      As the Agency's exception that the award is contrary to FPM
 Letter 300-34 and 5 C.F.R.  300.603(d) involves the award's
 consistency with law, we must review the questions of law raised
 by the Arbitrator's award and the Agency's exception de novo. 
 National Treasury Employees Union, Chapter 24 and U.S. Department
 of the Treasury, Internal Revenue Service, 50 FLRA 330, 332
 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87
 (D.C. Cir. 1994).  An arbitration award is deficient under section
 7122(a) of the Statute if it is contrary to law, rule, or
 regulation.  For the following reasons, we find that the award is
 contrary to FPM Letter 300-34 and 5 C.F.R.  300.603(d). 
 
      Under 5 C.F.R.  300.603(d), an agency head or his or her
 designee may waive the time-in-grade requirement to permit
 promotion in individual cases to avoid undue hardship to the
 agency or inequity to the employee resulting from an unavoidable
 situation that cannot be corrected through valid actions other
 than promotion of the employee.  Actions taken under this
 regulation "must be consistent with instructions set out in the
 regulations and FPM . . . requirements."  53 Fed. Reg. 34273
 (1988).  
 
      The instructions in effect at the time of the dispute are
 contained in FPM Letter 300-34.  Consistent with these
 instructions, absent undue hardship to the agency or undue
 inequity to an employee, an agency is not authorized to waive the
 time-in-grade requirement.  In this case, the only condition
 asserted to provide a basis for waiver is undue inequity to the
 grievant.  As relevant here, "[u]ndue inequity must result from .
 . . proven discrimination or administrative error that prevented
 the employees from reaching grades they otherwise would have
 attained."  FPM Letter 300-34 at 2.  The fact that employees may
 be "qualified for higher grades than they hold . . . by itself,
 may not be the basis for a waiver of the time in grade
 restrictions."  Id.  Reading 5 C.F.R.  300.603(d) consistent with
 instructions in FPM Letter 300-34, the term "undue inequity"
 requires a determination as to whether proven administrative error
 occurred that prevented the grievant from reaching the grade he
 otherwise would have attained.
 
      FPM Letter 300-34 does not define the term "administrative
 error."  However, that term has been interpreted by the
 Comptroller General in retroactive promotion cases to pertain to
 an error that:  (1) prevented a personnel action from taking
 effect as originally intended; (2) deprived an employee of a right
 granted by statute or regulation; or (3) would result in failure
 to carry out a nondiscretionary administrative regulation or
 policy.  E.g., 54 Comp. Gen. 888, 889 (1975); 50 Comp. Gen. 850,
 851 (1971).  We find no reason to depart from the Comptroller
 General's interpretation of that term in a case such as this,
 where the Arbitrator awarded a retroactive promotion. 
 Accordingly, we will apply these criteria for determining proven
 administrative error under FPM Letter 300-34.  
 
      The grievant was hired as a GS-5 Revenue Officer.  The
 evidence does not establish that, at the time of the grievant's
 appointment, the Agency intended to appoint him at a grade higher
 than a GS-5.  In this regard, although the letter from the
 Agency's Chief of Personnel to OPM after the grievant was hired
 expressed the view that the grievant met the GS-7 requirements,
 the letter does not establish that at the time of the grievant's
 appointment the Agency intended to hire him as other than a GS-5
 Revenue Officer.  Moreover, there is nothing in the record that
 establishes that OPM erred in rating the grievant as eligible only
 at the GS-5 level.  Thus, the record does not show that an error
 occurred that prevented a personnel action from taking effect as
 originally intended.  
 
      Further, the record does not demonstrate that any statute
 or regulation granted the grievant a right to a GS-7 level
 position.  No statute or regulation has been cited as mandating
 that OPM certify the grievant as eligible at the 
 GS-7 level, based on another agency's assessment of his
 qualifications, and we are not aware of any such statute or
 regulation.  Also, although the Arbitrator found that the
 information provided by OPM concerning how to appeal the rating
 results was not clear and the Agency's advice to the grievant on
 submitting an SF-171 exacerbated the lack of clarity in OPM's
 information, the record does not establish that even if the
 grievant had appealed his rating, a statute or regulation would
 have mandated that OPM rate him as eligible at the GS-7 level. 
 Accordingly, the record does not show that an error occurred that
 deprived the grievant of a right granted by statute or regulation
 to a GS-7 level position.  See, e.g., Comp. Gen. B-202296 (Dec.
 29, 1981) (unpublished).   
 
      Finally, the record does not show that there was an error
 that resulted in a failure to carry out a nondiscretionary
 administrative regulation or policy.  There is no showing that the
 Agency has a regulation or policy that mandated the grievant's
 appointment at the GS-7 level.  See, e.g., id.   
 
      Accordingly, the record does not establish that an
 administrative error occurred.  Consequently, the time-in-grade
 requirement may not be waived under FPM Letter 300-34 and 5 C.F.R.
  300.603(d).  Therefore, the award requiring the Agency to waive
 the time-in-grade-requirement and retroactively promote the
 grievant is contrary to 5 C.F.R.  300.603(d) and
 FPM Letter 300-34 and must be set aside.
 
 V.   Decision
 
      The award is set aside. 
                      
                              APPENDIX
 
 FPM Letter 300-34 provides in relevant part as follows:
  
      3.  Waiver of time in grade requirements.  Agencies may 
      waive time in grade restrictions on an individual
      case basis when necessary to avoid undue hardship to
      the agency or inequity to an employee, subject to the
      following conditions:
 
           . . . .
 
           Undue inequity must result from circumstances (e.g., undue
      hardship to the agency, issuance of a new classification
      standard) that require employees to be assigned work at a
      higher grade, or from proven discrimination or
      administrative error that prevented the employees from
      reaching grades they otherwise would have attained.  Many
      employees are qualified for higher grades than they hold;
      that fact, by itself, may not be the basis for a waiver of
      the time in grade restrictions.



FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. IThroughout the award, the Arbitrator referred to the Chief of Personnel as the District Director.

2. We construe the phrase "[w]ell within reach" as the Chief of Personnel's assessment of the grievant's standing in reference to the GS-7 certificate of eligibility submitted to the Agency by OPM. A certificate of eligibility is a list of eligibles from a register submitted to an agency's appointing officer by OPM so that the officer may consider the eligibles for appointment. See 5 C.F.R. § 332.102(a). Subject to requirements of law and regulation, the names of eligibles are entered on the appropriate registers in accordance with their numerical ratings. See 5 C.F.R. § 332.401.

3. "Time-in-grade requirement" pertains to the number of weeks an individual employed in a general schedule competitive position must spend in a position before advancement to a higher-graded position.See 5 C.F.R. §§ 300.601- 300.604.

4. The pertinent text of the FPM Letter is set forth in the Appendix.

5. The regulation cited by the Arbitrator, 5 C.F.R. § 300.603(d)(2), was promulgated in 1988. See 53 Fed. Reg. 34274 (1988). It authorizes waiver of the time-in-grade requirement in 5 C.F.R. § 300.602(a) and (b) when the employee meets all other qualification requirements for the position and: The agency head or his or her designee determines that waiver of the time in grade requirements is needed to avoid undue hardship to the agency or inequity to the employee resulting from an unavoidable situation that cannot be corrected through valid actions other than promotion of the particular employee. Each promotion authorized under this paragraph must be approved individually by the agency head or his or her designee. This regulation was revised in 1991 and redesignated as 5 C.F.R. § 300.603(b)(7). See 56 Fed. Reg. 23001 (1991). As revised, section 300.603(b)(7) authorizes waiver of the time-in-grade requirement "to avoid hardship to an agency or inequity to an employee in an individual meritorious case but only with the prior approval of the agency head or his or her designee." Id. at 23003. "Inequity to an employee" is defined, in pertinent part, as involving situations where "administrative error prevented an employee from reaching a higher grade." Id. at 23002.

6. The Agency also argues that: (1) the Arbitrator exceeded her authority by finding that the grievance was timely filed; (2) the Arbitrator's finding that the Agency admitted administrative error in the letter to