United States, Department of Veterans Affairs, Ralph H. Johnson, Medical Center, Charleston, South Carolina (Agency) and National Association of Government Employees,, Local R5-136 (Union)

[ v60 p46 ]

60 FLRA No. 13

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS,
RALPH H. JOHNSON
MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Agency)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R5-136
(Union)

0-AR-3593

_____

DECISION

June 24, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Bruce Fraser filed by the Agency under § 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. [n2] 

      The Arbitrator sustained a grievance alleging that the Agency violated the parties' agreement by failing to temporarily promote the grievant from a Computer Assistant, General Schedule (GS)-7 to a Computer Specialist GS-9, for duties performed at that grade level.

      For the reasons that follow, we find that the award, to the extent that it directs a retroactive temporary promotion of more than 120 days, is contrary to 5 C.F.R. § 335.103(c) and Agency Regulation MP-5, Part 1, Chapter 335, 14.a (Chapter 335, 14.a.). Accordingly, we set aside this portion of the award.

II.     Background and Arbitrator's Award

      In September 1998, the grievant was hired by the Agency as a Computer Assistant, GS-7. She worked in that position until she was promoted to a GS-9 in February 2002. Before this promotion, in late February 2001, the grievant filed a grievance alleging that she had been performing the duties of a Computer Specialist, GS-9 for approximately 2 years and that the Agency had failed to promote her to such a position in violation of Article 28, Sections 3 and 4 of the parties' collective bargaining agreement (CBA). [n3]  As a remedy, she requested, among other things, a temporary promotion to GS-9 and backpay. The Agency denied the grievance and the matter was submitted to arbitration on the following agreed-upon issue:

Did the grievant perform the duties of a GS-9 Computer Specialist from July 1999 to February 2002?

Award at 1.

      The Arbitrator found that the grievant testified "persuasively" that she routinely performed the tasks that the GS-9s were doing. Id. at 7. The Arbitrator determined that "[o]nce the Union had offered [the grievant's] testimony . . ., the burden shifted to the Agency[,]" to show that the grievant had not performed GS-9 work. Id. According to the Arbitrator, the Agency "failed to do this." Id. The Arbitrator found that: (1) the testimony of the supervisor was not decisive and showed that he did not have a "firm memory" of what projects, if any, the grievant had been assigned; (2) the supervisor did not provide evidence of assigning more complex jobs to GS-9s as opposed to the grievant; and (3) there was no testimony from the supervisor or anyone else as to what a GS-9 did during the period in question that the grievant did not do. Id. Based on the evidence, the Arbitrator concluded that the grievant did perform as a GS-9 from July 1999 to February 2002.

      The Arbitrator found that Article 28, Section 3 was applicable. He found no issue was raised that the grievant did not meet the requirements for the higher-graded position and she performed the duties for over 30 days. Accordingly, he found that the grievant was assigned the duties of a higher-graded position and that the assignment constituted a detail to that position, even though it was not acknowledged by the Agency. He found, therefore, that the grievant should have been temporarily promoted and directed the Agency to temporarily [ v60 p47 ] promote, retroactively, the grievant to GS-9, effective August 1999 to February 2002.

      In so finding, the Arbitrator refused to consider the Agency's claim that Article 29 and Article 28, Section 5 required the use of competitive procedures for a temporary promotion of more than 120 days. The Arbitrator stated that the "Agency lost its right to enforce these provisions when it failed to temporarily promote [the grievant] in July 1999 and thereafter. It cannot now be heard on this issue." Id. at 8.

III.     OPM's Advisory Opinion

      Because 5 C.F.R. Part 335 was promulgated by OPM to implement, among other provisions, 5 U.S.C. §§ 3301 and 3302, the Authority requested an advisory opinion from OPM on the following question:

Where an agency violates a collective bargaining agreement provision entitling employees to noncompetitive temporary promotions, and an arbitrator grants a retroactive temporary promotion of more than 120 days to remedy that violation with the retroactive promotion what is the applicability, if any, of the requirements of 5 C.F.R. § 335.103(c)(1)(i) that "competitive procedures" apply to promotions exceeding 120 days. If the requirements apply, what effect do they have on the arbitral remedy of a retroactive temporary promotion exceeding 120 days?[ [n4] ]

Authority's September 10, 2003 Advisory Opinion Request at 2.

      OPM advised that "5 C.F.R. § 335.103(c)(1)(i) applies." OPM Opinion at 1. In analyzing this provision, OPM noted that:

Paragraphs (c)(2) and (3) of 5 C.F.R. § 335.103 generally provide that competitive procedures do not apply to either a promotion resulting from the upgrade of a position due to issuance of a new classification standard or the correction of an initial classification error, or to certain other discretionary actions an agency may take including "a temporary promotion, or detail to a higher grade position or a position with known promotion potential of 120 days or less." 5 C.F.R. § 335.103(c)(3)(iii) (emphasis supplied).

OPM Opinion at 2. OPM further stated that as a result of the above "regulatory framework, OPM has left no doubt that time-limited promotions of more than 120 days must be made pursuant to competition under an agency merit promotion plan." Id. Based on this analysis of its regulations and facts presented in this case, OPM advised that the instant award is contrary to Government-wide regulation. According to OPM, the Arbitrator exceeded the scope of his authority by determining the outcome of a competitive procedure that never occurred and by ordering a retroactive temporary promotion in excess of the regulatory cap of 120 days.

IV.      Positions of the Parties

A.      Agency Exceptions

      The Agency asserts that the award is contrary to law, namely, 5 C.F.R. § 335.103(5)(c)(1)(i). The Agency states that 5 C.F.R. § 335.103(5)(c)(1)(i) provides that time-limited promotions for more than 120 days is a covered personnel action and must be a competitive promotion. The Agency contends that there is nothing in the award stating that the grievant competed for or received a documented personnel action temporarily promoting the grievant from the GS-7 to GS-9 level. The Agency asserts that the Arbitrator considered its post-hearing brief that raised this assertion, however, he "chose to ignore" this provision. Exceptions at 2.

      In support of its position, the Agency cites United States Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 55 FLRA 1014 (1999) (then Member Cabaniss dissenting) (Dep't of the Navy). Relying on the dissent's interpretation of 5 C.F.R. § 335, the Agency asserts that the Arbitrator's award of a temporary promotion is contrary to the regulation because it requires a promotion without the use of competitive procedures.

      The Agency also contends that the award is contrary to an Agency regulation on temporary promotions, Chapter 335, 14.a. The Agency asserts that it specifically informed the Arbitrator in its post-hearing brief of the requirement set out in Chapter 335, 14.a. that "[c]ompetitive promotion procedures must be used when a temporary promotion will exceed 120 days." Exceptions at 2. The Agency asserts that it informed the Arbitrator that its regulations had to be applied in accordance with 5 C.F.R. § 335.103. According to the Agency, nothing in the record shows the grievant competed for a promotion from GS-7 to GS-9.

      The Agency next asserts that the award does not draw its essence from the parties' CBA. The Agency [ v60 p48 ] states that "in its post-hearing brief [it] pointed to Article 29," which "explains the process and personnel actions necessary to effect a temporary promotion of greater than 120 days." Id. at 3. However, the Arbitrator relied on Article 28, Section 3. The Agency contends that it stated in its post-hearing brief that Article 28, Section 5, which provides "[a] temporary promotion of more than 120 days will be made through competitive procedures," must be applied with Article 28, Section 3. Id. at 4, citing to the parties' CBA. Again, the Agency asserts that nothing in the record shows any documentation of a competitive promotion for the grievant, for example, no promotion certificate or any promotion action. The Agency asserts that the Arbitrator ignored Article 29 and failed to apply Article 28, Section 5. In support, the Agency refers to Member Cabaniss' dissent in Dep't of the Navy.

      The Agency requests that the award be set aside to the extent that it awards a temporary promotion beyond 120 days.

      The Agency did not file a response to OPM's advisory opinion.

B.      Union's Opposition and Response to OPM's Advisory Opinion

      The Union contends that the exceptions are an attempt to re-litigate an issue long decided by the Authority. According to the Union the test for finding a constructive temporary promotion is well established under Authority case law. In support, the Union cites United States Department of the Army, Fort Polk, Louisiana, 44 FLRA 1548 (1992), among other cases. The Union asserts that the cited cases stand for the proposition that contract provisions requiring temporary promotions are enforceable either when employees are detailed to a position and not promoted or are performing the assignments of the higher graded position. Thus, according to the Union, the requirements for a constructive promotion are that there be a contractual requirement for the promotion and the employee be qualified for the position.

      Relying on Dep't of the Navy, the Union asserts that the issue of whether or not a retroactive promotion can be awarded for a period of greater than 120 days when an agency has violated a provision requiring that a promotion occur is well settled and should not be revisited. In support, the Union cites Social Security Administration, Baltimore, Md., 57 FLRA 690 (2002) (SSA I) and Social Security Administration, 57 FLRA 599 (2001) (SSA II) and argues that these cases show that the issue has not been revisited in "subsequent similar cases." Opposition at 6.

      The Union asserts that the rationale supporting a retroactive temporary promotion found in the Authority's ruling in Dep't of the Navy and other related cases is still persuasive and should not be disturbed. The Union contends that the fact that the Agency did not use competitive procedures to effect the promotion does not change the fact that the grievant was entitled to a promotion under the CBA or that the Agency did, in fact, assign her the higher-graded duties. The Union also contends that the Agency's reliance on Comptroller General decisions is misplaced, as the majority found in Dep't of the Navy.

      The Union asserts that the award does not fail to draw its essence from the parties' agreement. According to the Union, the Arbitrator's interpretation of the CBA should not be disturbed absent a finding that his interpretation is not plausible on its face. The Union contends that the Agency argues that Article 28, Section 5 of the CBA, requiring that temporary promotions in excess of 120 days be filled competitively, limits the period of time for which backpay can be recovered. According to the Union, "[s]uch a reading would moot the plain language of the portion requiring the temporary promotion. The fact that the [A]gency has violated one portion of the agreement does not excuse it for its violation of another." Opposition at 7.

      Concerning the remedy, the Union asserts that even if the Agency's contention that a temporary promotion in excess of 120 days must be filled through competitive procedures is correct, it would only serve to reduce the award because the grievant would still be entitled to pay for the first 120 days.

      The Union also contends that OPM's advisory opinion is "absurd." Response at 1. According to the Union, OPM's opinion "ignores the background that the case arose in and essentially allows an agency to injure an employee and reach an unfair result." Id. The Union asserts that it has never disputed that competitive procedures are supposed to be used in any temporary promotion of longer than 120 days. However, according to the Union, in this case the "temporary promotion has already occurred . . . before the grievance was filed." Id. at 2. The Union contends that the Agency violated the language that competitive procedures be followed when the promotion was for more than 120 days. The Union asserts that the Agency's failure to "properly comply with procedures does not preclude payment and there is no reference to . . . such outcome in the regulation." Id. The Union contends that OPM's opinion is [ v60 p49 ] "silent as to any logical link between the two and there is no explanation for [OPM's] assertion that adherence to the regulation requires setting aside the [a]ward." Id. at 3. The Union asks that if it is determined that a temporary promotion in excess of 120 days is not proper, then a remand is in order to determine whether the promotion should be "considered a string of noncompetitive shorter appointments" that would satisfy OPM. Id.

V.     Analysis and Conclusions

The Award Is Contrary to Law, 5 C.F.R. § 335.103(c)(1)(i) and Agency Regulation, Chapter 335, 14.a.

A.     Standard of Review

      The Authority reviews the questions of law raised by the Agency's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with applicable standards of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

B.      5 C.F.R. § 335.103(c)(1)(i) and Agency Regulation, Chapter 335, 14.a.

      The Arbitrator's award requires the grievant to be temporarily promoted retroactively from a GS-7 to a GS-9, effective from August 1999 until February 2002. This promotion exceeds 120 days. The Agency argues that it is contrary to 5 C.F.R. § 335.103(c)(1) and its Agency Regulation because it requires a promotion for more than 120 days without the application of competitive procedures. The Union argues that Authority precedent supports the Arbitrator's award. This is the issue on which OPM's advisory opinion was sought.

      The regulations in 5 C.F.R. Part 335 governing promotions and internal placement, which includes 5 C.F.R. § 335.103, were promulgated by OPM pursuant to specific statutory authority found at 5 U.S.C. §§ 3301 and 3302. An agency's interpretation of its own regulations is controlling unless it is "`plainly erroneous or inconsistent'" with the language of the regulation. Nat'l Assoc. of Agriculture Employees, 51 FLRA 843, 849 (1996) (NAAE) (quoting FLRA v. United States Dep't of the Treasury, Financial Management Service, 884 F.2d 1446, 1454 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990)), petition for review denied sub nom. Nat'l Assoc. of Agriculture Employees v. FLRA, 106 F.3d 442 (D.C. Cir. 1996). Moreover, "where Congress has not directly spoken to a precise question, an agency's interpretation of the statutory scheme it is entrusted to administer is to be accorded considerable weight so long as its interpretation is based on a permissible construction of the statute." Id. (citing Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984)).

      Applying the foregoing, we conclude that the Union has failed to establish that OPM's interpretation is plainly erroneous or inconsistent with the language of the regulation. Therefore, we will rely upon OPM's advisory opinion in determining whether the award is inconsistent with 5 C.F.R. § 335.103. See NAAE, 51 FLRA at 849.

      In analyzing the language of 5 C.F.R. § 335.103(c)(1), OPM stated that:

Paragraphs (c)(2) and (3) of 5 C.F.R. § 335.103, generally provide that competitive procedures do not apply to either a promotion resulting from the upgrade of a position due to issuance of a new classification standard or the correction of an initial classification error, or to certain other discretionary actions an agency may take including "a temporary promotion, or detail to a higher grade position or a position with known promotion potential of 120 days or less." 5 C.F.R. § 335.103(c)(3)(iii) (emphasis supplied).

OPM Opinion at 2. OPM stated that as a result of this regulatory framework, time-limited promotions of more than 120 days must be made pursuant to competition under an agency merit promotion plan.

      Based on OPM's interpretation of 5 C.F.R. § 335.103(c), to which we defer, we conclude that a retroactive temporary promotion for more than 120 days cannot be awarded in the absence of competitive procedures. Here, the Arbitrator refused to consider the Agency's claim that competitive procedures were required for promotions that exceeded 120 days and ordered a retroactive temporary promotion that exceeded the time limitation. Moreover, there is nothing in his factual findings that show that competitive procedures were applied in the promotion of the grievant from the GS-7 to GS-9 position. Therefore, the grievant's retroactive temporary promotion was limited to no more than 120 days. Accordingly, consistent with OPM's advisory opinion, we find that to the extent that the award orders a retroactive temporary promotion that exceeds 120 days, it is inconsistent with 5 C.F.R. § 335.103(c), as well the Agency Regulation, Chapter 335, 14.a. Therefore, we will modify the award to order the Agency to grant the grievant a retroactive temporary promotion, with backpay for the difference between the [ v60 p50 ] GS-7 and GS-9 wage rate, effective August 1999 for a period of 120 days. [n5] 

      Concerning the Union's request that if the award is found deficient, then it should be remanded for a determination on whether "it should properly be considered a string of noncompetitive shorter appointments[,]" Union's Response at 3, we find that the Union has not established any basis for concluding that the Arbitrator intended the award to encompass such a series of promotions. Accordingly, no further determination by the Arbitrator is needed. Moreover, under 5 C.F.R. § 335.103(c)(1), prior service under noncompetitive time-limited promotions and noncompetitive details to higher graded positions during the preceding 12 months count toward the 120-day total. Therefore, the grievant would be entitled only to a retroactive temporary promotion of no more than 120 days. Accordingly, the Union's remand request is denied.

      Also, because there is no evidence that competitive procedures were applied in the promotion of the grievant, there is no showing that a personnel action resulted in the withdrawal or reduction of the grievant's pay and, therefore, the grievant is not entitled to back pay for the period exceeding the 120 days limitation. We also find that to the extent that Authority precedent would support a conclusion that the award in the circumstances presented here is not inconsistent with 5 C.F.R. § 335.103(c), it will no longer be followed.

VI.     Decision

      The award is modified consistent with this decision.


APPENDIX

      Article 28 of the CBA, provides, in relevant part, as follows:

ARTICLE 28 - DETAILS AND TEMPORARY PROMOTIONS
. . . .
Section 3. Employees detailed to a higher grade position for a period of more than 30 consecutive days will be temporarily promoted provided that the employee otherwise meets the requirements for promotion. The temporary promotion should be effective no later than the 31st day. The promotion will be made effective the first day of the pay period after it becomes known that the detail will last more than 30 days.
Section 4. Details of one week or more shall be recorded and maintained in the Official Personnel Folder.
Section 5 - A temporary promotion of more than 120 days will be made through competitive procedures.

      5 C.F.R. § 335.103 provides, in relevant part, as follows:

      § 335.103 Agency promotion programs.

. . . .
(c) Covered personnel actions--(1) Competitive actions. Except as provided in paragraphs (c)(2) and (3) of this section, competitive procedures in agency promotion plans apply to all promotions under § 335.102 of this part and to the following actions:
     (i) Time-limited promotions under § 335.102(f) of this part for more than 120 days to higher graded positions (prior service during the preceding 12 months under noncompetitive time-limited promotions and noncompetitive details to higher graded positions counts toward the 120-day total). A temporary promotion may be made permanent without further competition provided the temporary promotion was originally made under competitive procedures and the fact that might lead to a permanent promotion was made known to all potential candidates[.]
. . . .
(2) Noncompetitive actions. Competitive procedures do not apply to:
(i) A promotion resulting from the upgrading of a position without significant change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error[.]
. . . .
(3) Discretionary actions. Agencies may at their discretion except the following actions from competitive procedures of this section:
. . . .
(iii) A temporary promotion, or detail to a higher grade position or a position with known promotion potential, or 120 days or less[.] [ v60 p51 ]

Concurring Opinion of Chairman Cabaniss:

      Consistent with my views expressed in Laborers' International Union of North America, Local 28, 56 FLRA 324, 327-28 (2000), I raise the concern that the parties and the Arbitrator addressed the issue of a temporary promotion without first ascertaining whether the duties giving rise to the temporary promotion were actually duties temporarily assigned to the employee. In that regard, I note that the grievant raised during the grievance process the issue of an accretion of duties promotion based upon a reclassification of her position. Award at 1. I also note that the grievant testified (apparently credibly) that she had been performing GS-9 duties from July 1999 to February 2002, when the grievant was permanently promoted to GS-9. Id. at 2. While temporary duties can continue for some time, the two-and-one-half year period here indicates to me a more permanent assignment of the work involved.

      Consequently, I question whether this really should have been a temporary promotion case at all. All too often it appears that employees resort to a negotiated grievance procedure (which cannot entertain promotion classification issues, per § 7121(c)(5) of the Statute) to get at least a temporary promotion, rather than go through a position classification appeal process that could provide them with an accretion of duties permanent promotion. On the one hand, classification appeals do not provide for back pay to employees (5 U.S.C. § 5596(b)(3)) but do provide for a permanent promotion: on the other hand, temporary promotion cases can be tried before an arbitrator but now can provide only 120 days of back pay. I would hope that the "forum shopping" that seems to go on in some of these cases could be eliminated by a greater emphasis on whether the higher-graded duties at issue have been temporarily or permanently assigned.


Member Carol Waller Pope, concurring:

      I agree that the award is contrary to 5 C.F.R. § 335.103(c) to the extent that it requires the Agency to grant a retroactive temporary promotion for more than 120 days. I write separately to note that, although I agree that the Authority must defer to the Office of Personnel Management's (OPM's) interpretation of § 335.103(c), I do so reluctantly and only because the standard of review of OPM's interpretation of its regulation -- whether the interpretation is "plainly erroneous or inconsistent with the regulation" -- is so deferential. AFGE, Local 1978, 56 FLRA 894, 897 (2000) (quotation omitted). However, I have concerns that OPM's interpretation actually encourages agencies to violate, rather than comply with, § 335.103(c). Specifically, under OPM's interpretation, an agency that ignores competitive procedures cannot be required to pay employees for higher-graded duties performed in excess of 120 days, while an agency that complies with competitive procedures presumably can be required to pay employees for those duties. This provides agencies a strong financial incentive to ignore competitive procedures when they want to assign employees higher-graded duties for more than 120 days. I am skeptical that a regulation should be interpreted in a manner that encourages its own violation. Nevertheless, because OPM's interpretation is not plainly erroneous or inconsistent with § 335.103(c), the Authority must defer to it. Accordingly, I concur.



Footnote # 1 for 60 FLRA No. 13 - Authority's Decision

   The concurring opinions of Chairman Cabaniss and Member Pope are set forth at the end of this decision.