21:0781(97)AR - AFGE, Local 1568 and HUD -- 1986 FLRAdec AR

 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).