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The decision of the Authority follows:
21 FLRA No. 97 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1568 Union and U.S. GOVERNMENT OF HOUSING AND URBAN DEVELOPMENT Agency Case No. 0-AR-919 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Sherman Dallas filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. II. BACKGROUND AND ARBITRATOR'S AWARD The grievance before the Arbitrator involved the question of whether the grievant had lateral retreat rights in a reduction-in-force (RIF) situation to a position he had previously held. The Grievant had been a GS-12 Community Planning and Development Specialist and had been promoted to Chief of Program Support, GS-13. The Agency conducted a RIF and the grievant was reassigned from the GS-13 position to a GS-12 Realty Specialist position. The Agency subsequently conducted a second RIF in which the grievant was separated from the Federal service. In the course of the second RIF, the grievant sought to retreat laterally from the GS-12 Realty Specialist position to his previous GS-12 position of Community Planning and Development Specialist. The Agency determined that retreat rights were only to lower-graded positions and that the grievant was not entitled to retreat laterally to his former GS-12 position. The Agency based its determination on a letter from an official in the Office of Personnel Management (OPM) to an Agency official in response to the Agency's request for an interpretation of Federal Personnel Manual (FPM) letter 351-14. /1/ The Agency therefore denied the grievant's request. The Arbitrator found that under the plain language of FPM letter 351-14 the grievant had lateral retreat rights. Expressing respect and "great deference" for OPM's role in the matter, the Arbitrator concluded that the interpretation of the OPM official that retreat was always to a lower grade was wrong. Accordingly, as his award, the Arbitrator sustained the grievance and ordered that the grievant be placed in the GS-12 position he sought and be made whole. III. FIRST EXCEPTION A. Contentions As its first exception, the Agency contends that the Arbitrator exceeded his authority in disregarding OPM's interpretation of FPM letter 351-14. In support of its contention, the Agency argues that the Merit Systems Protection Board had determined that OPM's interpretation of its RIF regulations is entitled to great deference /2/ and that the Arbitrator erred in rejecting OPM's interpretation of FPM letter 351-14 and in giving greater weight to his own interpretation of that issuance. B. Analysis and Conclusions The question raised by the Agency's exception is whether the Arbitrator was obligated to accept the letter from the OPM official to the Agency as controlling the disposition of the case. The Authority has previously noted the OPM guidance set forth in FPM letters is merely that and not binding on Federal agencies. National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA NO. 2, slip op. at 4 n.3 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986). Similarly, the U.S. Court of Appeals for the District of Columbia Circuit has ruled that OPM advice and guidance is precisely that and not binding on agencies. Federal/Postal/Retiree Coalition v. Devine, 751 F.2d 1424, 1431 (D.C. Cir. 1985). Additionally, the Merit Systems Protection Board has indicated that OPM guidance set forth in the FPM may not serve to contravene requirements set forth in its published regulations and that oral instructions transmitted by OPM personnel to an agency do not constitute "regulations" governing agency actions in disposing of employee rights under 5 CFR part 351. Mallory v. Department of the Army, 3 MSPB 100, 103 (1980). The Authority therefore concludes that the OPM letter to the Agency in this case was an advisory opinion and that while it was entitled to consideration, it was without controlling effect in this matter. Furthermore, the regulations which appear to be controlling in the RIF involved in this case, 5 CFR part 351 (1983), do not prohibit lateral reassignments to positions at the same grade level. In that regard, 5 CFR Section 351.703 (1983) provided for the reassignment of an employee to a position from or through which the employee had been promoted, or to an essentially identical position. /3/ Moreover, although it is essentially interpretive guidance, FPM letter 351-14 expressly provides that "retreat rights are almost always to positions at a lower grade," i.e., not always to lower-graded positions; and further clearly indicates that retreat to a position at the same grade level is permissible in some limited circumstances, i.e., where the employee previously held the position and was promoted from it to a higher-graded position. Thus, while the letter from the OPM official relied upon by the Agency in denying the grievant lateral retreat rights warrants consideration, the Agency fails to establish how the Arbitrator erred in rejecting the advisory opinion of the OPM official and interpreting FPM letter 351-14 in accordance with the plain language of the issuance. The Authority therefore concludes that the Agency has failed to establish that the Arbitrator exceeded his authority or erred in this matter as alleged. IV. SECOND EXCEPTION A. Contention In its second exception, the Agency essentially contends that the Arbitrator's award is contrary to 4 U.S.C. Section 5362(c)(2), which prohibits the use of an employee's retained grade for purposes of applying RIF procedures. In support of this contention, the Agency argues that the Arbitrator improperly considered the grievant's retained grade of GS-13 in applying the RIF procedures. B. Analysis and Conclusions The Authority finds that the Agency has failed to establish that the Arbitrator improperly considered the grievant's retained grade in determining his entitlement to retreat to the GS-12 Community Planning and Development Specialist position. Rather, the Arbitrator's award is specifically founded on his interpretation of the express language of FPM letter 351-14 and his conclusion that the grievant was entitled to lateral reassignment to the position he had previously held and from which he had been promoted. It is clear that the thrust of the Agency's argument constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusions based on the evidence before him. Consequently, the exception does not provide a basis for finding the award deficient. See, e.g., Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983). V. DECISION Accordingly, for the above reasons, the Agency's exceptions are denied. Issued, Washington, D.C., May 12, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) FPM letter 351-14 provides, in pertinent part: When an agency is unable to offer an employee who has been released from his or her competitive level a position at the same grade or rate through reassignment or bumping rights, the agency then determines whether the employee has RETREAT rights to a better offer of assignment. An employee has retreat rights ONLY to positions that are identical or essentially the same as positions he or she actually held in the past, and from which or through which the employee was subsequently promoted. An employee does not acquire retreat rights by merely being qualified for a position held by an employee in the same subgroup. * * * * * * * Retreat rights are almost always to positions at a lower grade. In order for an employee to have retreat rights to a position at his or her present grade, the employee must have formerly held a position at the present grade and have been promoted out of it to another position. In short, the employee must have held a position with a grade which is higher than his or her present grade. (2) McMahon v. Department of the Army, MSPB Docket No. SL03518210290 (June 7, 1984). (3) The Authority notes that the most recent final regulations governing RIF's, 5 CFR part 351 (1986), promulgated by OPM also do not prohibit lateral reassignments or restrict retreat rights only to positions at lower grades. In that regard, the Authority further notes that the supplementary information published by OPM concerning these most recent regulations clearly indicates that an employee has retreat rights to positions at the same grade level which were previously held by the employee. 51 Fed. Reg. 318 (Jan. 3, 1986).