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 OPM is based on a nonfact because the letter was written by the Chief of Personnel and not the District Director; and (3) by ordering the Agency to retroactively promote the grievant to a GS-7 position, the award abridges its right to determine the grades of employees under section 7106(b)(1) of the Statute.
7. There is no dispute in this case that FPM Letter 300-34 and 5 C.F.R. § 300.603(d) constitute rules or regulations within the meaning of section 7122(a).
8. FPM Letter 300-34 was abolished effective December 31, 1993. See FPM Sunset Document, Chapter Summary Sheet at 32. Even though the FPM Letter was abolished, it applies in this case because to give retroactive effect to the abolishment of the FPM in this case would impair the Agency's rights under the FPM Letter and there is no indication in the FPM Sunset Document that OPM intended this result. See American Federation of Government Employees, Local 1843 and U.S. Department of Veterans Affairs, Medical Center, Northport, New York, 51 FLRA 444, 449 n.4 (1995) (citing U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 223-25 (1995)). Further, we apply 5 C.F.R. § 300.603(d) rather than the revised version of this regulation found at 5 C.F.R. § 300.603(b)(7) because it was existence at the time of the actions giving rise to the grievance. See Landgraf v. USI Film Products, __ U.S. __,114 S. Ct. 1483, 1501-05 (1994) (the Court stated that where the application of a new law would impair rights a party possessed when it acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed, the traditional presumption against retroactivity operates to deny such retroactive effect in the absence of a clear congressional intent to the contrary). Not applying 5 C.F.R. § 300.603(d) in this case would impair the rights the parties possessed when the dispute arose.
9. In light of this determination, we do not address the Agency's remaining contentions.