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The decision of the Authority follows:
53 FLRA No. 43
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
934TH AIR RESERVE BASE
September 5, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
Decision by Member Wasserman for the Authority (1)
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph L. Daly filed by the Union under section 7122(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator determined that the grievant was not entitled to retained pay and denied the grievance. For the reasons discussed below, we remand the case to the parties for resubmission, absent settlement, to an arbitrator to render an award in accordance with this decision.
II. Background and Arbitrator's Award
The grievant was an Air Force Reserve Technician, which is a civilian position. As a condition of employment, the grievant was required to be a member of the Air Force Reserve (the Reserve).
In 1993, Congress directed the Reserve to implement the High-Year Tenure (HYT) program, which requires the separation of Reserve members from the military once they reach a certain age and number of years in the Reserve. By memorandum dated February 7, 1994, the Agency informed the grievant that he was being registered in both the HYT program and "the DoD automated referral program for Air Force Status Quo employees. . . ." Union's Exh. 12 at 1. The memorandum also informed him that he would be registered for all non-ART positions at his current grade and in his current occupational series; that he could choose to register for positions at a lower grade, which could make him eligible for pay retention; and that:
[y]ou will be registered in the Air Force Status Quo program for a minimum of one year, or until placement occurs. . . . In any case, your registration will not exceed one year, at which time you will be removed from your civilian position.
The grievant's HYT date was February 16, 1995. On that date, he was scheduled to be separated from the Reserve and, as a consequence, to lose his civilian position. Despite oral assurances that he would retain his current pay scale if he accepted a lower grade position, he received a memorandum on February 16, 1995, stating that he could either accept a lower grade position with lower grade pay or have his employment terminated that day. (2) The grievant accepted the offer because he "felt he had no choice." Id. at 14.
The Union filed a grievance contending that the grievant should be paid at his old pay rate. The grievance was submitted to arbitration on the following issue:
Was [the grievant's] pay properly set at WG-5, Step 5, $13.86 per hour upon his change to lower grade on 16 February, 1995?
Award at 2.
The Arbitrator stated that ARTs are subject to both the Civil Service Reform Act of 1978, which concerns civilian personnel and their rights, and the 1993 National Defense Authorization Act, which directed the Reserve to implement the HYT program. He concluded that these statutes were in conflict on the issue in dispute. In order to resolve this conflict, the Arbitrator addressed the intent of the two laws. He found that the Civil Service Reform Act was designed, in relevant part, to protect employees financially when they lose a job through no fault of their own. Noting that the HYT program protects ARTs financially by permitting them to take optional retirement with an immediate unreduced civil service annuity, he concluded that "Congress probably intended that the civil service law of 1978 and its surrounding rules and regulations should not be applicable to an ART under the HYT program." Award at 20. Accordingly, he denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to 5 U.S.C. §§ 5361-5363.(3) The Union also argues that the Arbitrator made a gross mistake of fact because the award is contrary to Air Force Instruction (AFI) 36-802, paragraph 220.127.116.11, which states that pay retention will be granted to an ART who
has, or is scheduled to lose eligibility through no fault of his own, (that is, "status quo" employee) and he accepts placement in a lower grade non-reserve position.(4)
Exceptions at 1.
B. Agency's Opposition
The Agency argues that the statute and regulation cited by the Union do not apply to the grievant. It contends that the provisions of 5 U.S.C. §§ 5361-5363 do not apply because rules and regulations affecting the grievant as a civilian employee do not apply to the grievant in his status as a military member. It argues that AFI 36-802 does not apply to the grievant because reservists separated under the HYT program do not become status quo employees. The Agency claims that the HYT program was created after regulations concerning status quo employees were drafted and that the regulations were never intended to cover the effect of HYT on employees. The Agency states that this exclusion will be made clear in an upcoming revision to AFI 36-108.
IV. Analysis and Conclusions
As the Union alleges that the Arbitrator's findings are contrary to law and regulation, we review the questions of law and regulation raised by the award and exceptions 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)).
A. The Award Is Not Inconsistent With Law
The Union claims that the award is inconsistent with 5 U.S.C. §§ 5361-5363. Those provisions, including the provision concerning pay retention, apply only to employees "who [are] placed as a result of reduction-in-force procedures . . . ." 5 U.S.C. § 5362(a)(1). "Reduction-in-force procedures" are defined as "procedures applied in carrying out any reduction in force due to a reorganization, due to lack of funds or curtailment of work, or due to any other factor." 5 U.S.C. § 5361(7).
The grievant in this case was not placed into a lower grade position as a result of a reduction-in-force procedure. He accepted the lower graded, lower paying, position because he had lost his military status, which was a condition of retaining his original civilian position. Therefore, he was not covered by 5 U.S.C. §§ 5361-5363, including the requirements for pay retention set forth in 5 U.S.C. § 5363(a). Consequently, the award is not inconsistent with the provisions cited by the Union and is not deficient on that basis. Accordingly, we deny the exception.
B. We Cannot Determine Whether the Award Is Deficient As Inconsistent With an Agency Regulation and We Remand the Award
We construe the Union's assertion that the Arbitrator made a gross mistake of fact by not recognizing that the award is contrary to AFI 36-802, paragraph 18.104.22.168, as a contention that the award is contrary to that Agency regulation.
AFI 36-802, paragraph 22.214.171.124 states that pay retention will be granted to Reserve technicians who are "status quo employees" and accept placement in a lower grade non-reserve position. For the following reasons, we conclude that the grievant was a status quo employee. First, AFI 36-108, the glossary of terms used in the ART program defines status quo employees as ARTs who lose active membership in the Reserve for reasons considered to be beyond their control. See note 4 above. Second, Air Force Reserve Regulation 40-2, which contains procedures for ARTs who lose active Reserve membership, defines when loss of Reserve membership is "beyond the individual's control[.] See Appendix. Regulation 40-2, paragraph 2.c(1) states that mandatory military separation is a situation resulting in loss of Reserve membership that is considered to be "beyond the individual's control." The HYT program is a form of mandatory military separation.
Based on the foregoing, we conclude that the grievant, who lost active membership in the Reserve as a result of the HYT program, was a status quo employee. Indeed, in its memorandum to the grievant dated February 7, 1994, the Agency informed him that he would "be registered in the DoD automated referral program for Air Force Status Quo employees . . . ." Union's Exh. 12 at 1. In these circumstances, where the Agency's interpretation of its regulation is inconsistent with the language of the regulation and with its own actions, we do not defer to that interpretation. See U.S. Department of Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons and American Federation of Government Employees, Local 1612, 51 FLRA 1126, 1136-37 (1996).
This does not end our inquiry, however. Having found that the grievant was a status quo employee, we must also determine whether he accepted placement in a lower grade non-reserve position within the meaning of AFI 36-802, paragraph 126.96.36.199 and, therefore, had a right to pay retention at the time he agreed to take that position. We conclude that we cannot make that determination based on the record before us.
When the grievant was told on February 7, 1994, that he would be registered in the HYT program, he was also told that he would be registered in the "DoD automated referral program." Union's Exh. 12 at 1. The record and the memorandum to the grievant dated February 16, 1995, indicate that the Agency was referring to its Priority Placement Program (PPP), which is an outplacement assistance program maintained by the Department of Defense. See Regulation 40-2, section 4. The February 7 memorandum further indicates that registration in the PPP would control the grievant's placement, if any, in a non-reserve position and, depending on his registration, would control his eligibility for pay retention in lower grade positions. Thus, the record demonstrates that the grievant's entitlement to pay retention, including the period of that entitlement, was subject to the requirements of the PPP.
The February 7, 1994, memorandum does not address when the grievant's registration in the PPP program would expire. Indeed, it states both that "[y]ou will be registered in the . . . program for a minimum of one year," and "your registration will not exceed one year . . . ." Union's Exh. 12 at 1. To add to the confusion, the applicable regulation provides that some potential status quo employees are registered in the PPP for a maximum of one year, see regulation 40-2, sections 4.a(1) and 4.b(1), while others are registered indefinitely, see id. at sections 4.c(1) and 4.d(1). In its brief to the Arbitrator, the Agency claimed that "management is under no obligation to offer any employment after the one-year period of registration in the PPP." Management Closing Brief at 10 (emphasis in original). However, the Arbitrator denied the grievance on other grounds and did not address this argument. In addition, the record does not establish whether the grievant's registration in the PPP entitled him, as a status quo employee, to pay retention in the particular position in which he was placed. In sum, we do not know whether the grievant was still registered in the PPP at the time he agreed to take the lower grade position and, if so, whether that registration entitled him to pay retention.
Thus, we are unable to determine on the record before us whether the grievant accepted placement in a lower grade non-reserve position, within the meaning of AFI 36-802. Accordingly, we remand this case to the parties for further proceedings consistent with this decision. E.g., U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service, Window Rock, Arizona and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 52 FLRA 909, 915 (1997) (and cases cited therein). On remand, the parties, absent settlement, may submit the issue discussed above to an arbitrator of their choice. E.g., U.S. Department of the Air Force, Air Logistics Center, Warner Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 41 FLRA 1304, 1308 (1991).
The award is set aside. We remand the case to the parties for submission to an arbitrator, absent settlement, for further proceedings consistent with this decision.
5 U.S.C. § 5361. Definitions
(7) 'reduction-in-force procedures' means procedures applied in carrying out any reduction in force due to a reorganization, due to lack of funds or curtailment of work, or due to any other factor.
5 U.S.C. § 5362. Grade retention following a change of positions or reclassification.
(a) Any employee--
(1) who is placed as a result of reduction-in-force procedures from a position subject to this subchapter to another position which is subject to this subchapter; and which is in a lower grade than the previous position, and
(2) who has served for 52 consecutive weeks or more in one or more positions subject to this subchapter at a grade or grades higher that of the new position, is entitled, to the extent provided in subsection (c) of this section, to have the grade of the position held immediately before such placement be considered to be the retained grade of the employee in any position he holds for the 2-year period beginning on the date of such placement.
. . . .
(d) The foregoing provisions of this section shall cease to apply to an employee who--
(2) is demoted . . . for personal cause or at the employee's request[.]
5 U.S.C. § 5363. Pay retention.
(a) Any employee--
(1) who ceases to be entitled to the benefits of section 5362 of this title by reason of the expiration of the 2-year period of coverage provided under such section;
(2) who is in a position subject to this subchapter and who is subject to a reduction or termination of a special rate of pay established under section 5305 of this title;
(3) who is in a position subject to this subchapter and who (but for this section) would be subject to a reduction in pay under circumstances prescribed by the Office of Personnel Management by regulation to warrant the application of this section; or
(4) who is in a position subject to this subchapter and who is subject to a reduction or termination of a rate of pay established under subchapter IX of chapter 53;
is entitled to a basic pay at a rate equal to (A) the employee's allowable former rate of basic pay, plus (B) 50 percent of the amount of each increase in the maximum rate of basic pay payable for the grade of the employee's position immediately after such reduction in pay if such allowable former rate exceeds such maximum rate for such grade.
188.8.131.52 Pay retention to DoD employees will be granted when--
- An Army or Air Force reserve technician has or is scheduled to lose eligibility through no fault of his or her own (that is, "status quo" employee), and he or she accepts placement in a lower grade nonreserve position.
AFRES Regulation 40-2. Procedures on Air Reserve Technicians (ART) Who Lose Active Reserve Membership
2. Terms Explained
c. Involuntary Loss of Reserve Membership or "Beyond the Individual's Control." Loss of Reserve membership under the following situations is defined as "beyond the individual's control" and is, therefore, involuntary in nature:
(1) Mandatory military separation.
. . . .
4. Loss of Reserve Unit Membership -- Involuntary. ARTs who lose active Air Force Reserve membership involuntarily or "beyond the individual's control" (paragraph 2c) will be treated in the following manner:
a. Those occupying key positions under a mobility agreement (officer):
(1) Potential status quo employees will be registered in the DOD Priority Placement Program (PPP) for outplacement assistance at Air Force activities nationwide for up to 1 year before their MSD [mandatory separation date]. Those individuals not placed in a non-ART position within the 12-month period will be separated at the end of the 1-year period concurrent with becoming status quo. . . .
b. Those occupying key positions and who are not under a mobility agreement (enlisted):
(1) Potential status quo employees will be registered in DOD PPP for outplacement assistance minimally for Air Force activities in their local area for up to 1 year before their MSD. Those individuals not placed in a non-ART position within the 12-month period will be separated at the end of 1-year period concurrent with becoming status quo. . . .
c. Those occupying non-key positions and who are under a mobility agreement (officer):
(1) Potential status quo employees will be registered indefinitely in DOD PPP for outplacement assistance for Air Force activities nationwide. Those declining a valid position offer will not be considered further at that location and upon becoming status quo will be separated. If a position offer is not made during the 1-year registration, registration continues past the date the employee becomes status quo and until the employee declines a valid offer. At such time, the employee will be separated from his/her civilian position, unless already placed in a non-ART position. . . .
d. Those occupying non-key positions and who are not under mobility (enlisted):
(1) Potential status quo employees will be registered indefinitely in the DOD PPP for outplacement assistance minimally for Air Force activities in their local area. Those declining a valid position offer will be separated upon becoming status quo. If a position offer is not made during the 1-year registration, registration continues past the date the employee becomes status quo and until the employee declines a valid offer. At such time, the employee will be separated from his/her civilian position unless already placed in a non-ART position. . . .
(If blank, the decision does not have footnotes.)
1. Consistent with the practice of other adjudicatory panels, the Authority henceforth will, on occasion, issue decisions authored by an individual Member on behalf of the Authority. These decisions constitute the decision of the full Authority. If no individual author is named, the decision is per curiam.
2. The February 16 memorandum referenced the February 7, 1994, memorandum and stated in part:
1. . . You have been registered in the DoD Priority Placement Program (PPP) and to date there have been no vacant positions for which you were registered and eligible to be placed.
2. Based upon evidence you provided this office on 15 February 1995, you have been determined to be basically eligible for the position of Materials Handler, WG-6907-05 . . . and are being offered this position as a means to continue your Federal employment.
. . . .
4. If you should decline this offer your employment will be terminated on 16 February 1995 as indicated in the letter issued to you on 6 February 1995.
Award at 13. The letter dated February 6, 1995, is not in the record.
3. The relevant statutory provisions and Agency regulations are set forth in an appendix to this decision.
4. AFI 36-108, Air Reserve Technician Program Glossary of Terms, defines status quo employees as "those individuals occupying ART positions who lose active membership in their Reserve unit of assignment for reasons considered to be beyond their control." Award at 9.