[ v51 p1487]
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.
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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.