File 2: Opinion of Member Wasserman

[ v55 p344 ]


Opinion of Member Wasserman concurring in part and dissenting in part:

      Contrary to the conclusions reached by my colleagues, it is my view that by assigning the grievant to the Safety Manager position and receiving the benefit of his work, the Agency head's agents waived the time-in-grade requirements set forth in 5 C.F.R. § 300.604, as permitted by 5 C.F.R. § 300.603(b)(7). More specifically, it is my view that an agency's waiver of the time-in-grade restrictions need not be express but, additionally, can be inferred from its actions.

      In this case, the Arbitrator found that the grievant's supervisor left her position as the Safety Manager, and in July, 1995, the grievant was designated to temporarily fill the position. The Arbitrator further found that the grievant was not a candidate for advancement and did not apply for the position. Finally, the Arbitrator's factual findings show that in November, 1995, the grievant received his career ladder promotion to a GS-7 and in March, 1996, he was returned to regular duties at the end of his temporary assignment. Thus, it is clear that at the time the Agency designated the grievant to serve as the Acting Safety Manager until a permanent replacement could be found, it was fully cognizant of his GS-5 status. In these circumstances, I conclude that the Agency effectively waived the time-in-grade requirements in order to avoid inequity to the grievant. [n1] 

      In addition, consistent with my view that the time-in-grade requirements were effectively waived, it is my view the specialized experience requirements established by the Agency were also waived. In this connection, I specifically note that the applicable vacancy announcement requires "one year of specialized experience equivalent to the next lower grade level . . . which provided the applicant with specific knowledge, skills and abilities in order to successfully perform the duties of the position." Exceptions, Attachment UE-6. However, the minimum qualification standards established by the Office of Personnel Management (OPM), and of which I take official notice, do not contain the "one year" requirement. Under Authority precedent, as set forth in Fort Dix, 49 FLRA at 736, an employee must meet the minimum qualification requirements for the position in order to be promoted. It is my understanding that the minimum qualification requirements to which our precedent refers, and which cannot be waived, are the minimum requirements established by OPM rather than the discretionary, additional requirements imposed by an agency. As such, I conclude that the Agency waived its own discretionary one year requirement by assigning the grievant to the Safety Manager position.

   &n