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57 FLRA No. 111
UNITED STATES DEPARTMENT OF VETERANS
AFFAIRS, ALASKA HEALTH CARE SYSTEM
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3028
November 20, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
Decision by Member Pope for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Gerald Cohen filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to promote the grievant when his position was reclassified to a higher grade. The Arbitrator retroactively promoted the grievant to the higher-graded position and awarded the grievant backpay.
For the reasons that follow, we find that the Agency has failed to show that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant, a GS-6 excepted service employee, requested a merit promotion to GS-7 "[a]t about the same time" that the Agency reclassified his position to GS-7. Award at 1. The Agency denied the grievant's request for promotion on the ground that he did not meet the qualification standards or one-year time-in-grade requirement for promotion. Subsequently, after the grievant reached a year in grade, the Agency promoted him. See Exceptions at 5.
The Union filed a grievance contending that the grievant was entitled to promotion under the parties' agreement at the time his position was reclassified. The matter was submitted to arbitration, where the Arbitrator considered the following issues: (1) "Was the [g]rievant denied a promotion to GS-7 in violation of the Master Agreement between the parties?"; and (2) "If so, what is the appropriate remedy?" Award at 1.
The Arbitrator found that the grievant's position had been reclassified due to the accretion of additional duties and responsibilities, and that Article 27, Section 7(A)(1) of the parties' agreement required promotion under such circumstances. [n1] As a result, the Arbitrator concluded that the Agency violated the parties' agreement when it did not promote the grievant upon the reclassification of his position. Accordingly, the Arbitrator ordered the grievant retroactively promoted on the date his position was reclassified, and awarded the grievant backpay.
III. Agency's Exceptions
The Agency argues that the award is contrary to Office of Personnel Management (OPM) qualification standards and time-in-grade requirements. With regard to qualification standards, the Agency contends that it was precluded under 5 C.F.R. § 300.603(b) from promoting the grievant at the time his position was reclassified because he did not meet an OPM standard requiring "specialized experience of one year equivalent to at least the next lower grade level." [n2] Exceptions at 5 (citing OPM Operating Manual, Qualification Standards for General Schedule Positions, IV-A-3). With regard to time-in-grade requirements, the Agency contends that it was precluded under 5 C.F.R. § 300.604(b) from promoting the grievant at the time his position was reclassified because the grievant had not served fifty-two weeks time-in-grade. [n3] [ v57 p591 ]
The Agency further argues that the Arbitrator's award is contrary to the Back Pay Act. In this regard, the Agency contends that the Agency's failure to promote the grievant did not constitute an unwarranted personnel action under the Back Pay Act because the grievant failed to meet the regulatory time-in-grade requirement and qualification standard for promotion.
IV. Analysis and Conclusions
The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.
Under the Back Pay Act, an award of backpay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the employee's pay, allowances or differentials. 5 U.S.C. § 5596(b)(1). See also United States Dep't of Def., Def. Commissary Agency, Fort Lee, Va., 56 FLRA 855, 859 (2000) (Member Wasserman concurring) (DOD, Fort Lee). An arbitrator may award backpay consistent with the Back Pay Act when the arbitrator determines that an agency has denied an employee a promotion to which he or she was entitled under a collective bargaining agreement. See, e.g., United States Dep't of the Army, Dugway Proving Ground, Dugway, Utah, 57 FLRA 224, 228 (2001). However, the employee must meet applicable time-in-grade and qualification requirements for promotion. DOD, Fort Lee, 56 FLRA at 859.
A. The Award is Not Contrary to 5 C.F.R. §§ 300.603(b) or 300.604(b)
The Agency argues that the Arbitrator's award is contrary to the requirements that, in order to be promoted, employees must meet OPM qualification standards under 5 C.F.R. § 300.603(b) and time-in-grade requirements established in 5 C.F.R. § 300.604(b). However, the requirements of 5 C.F.R. §§ 300.603(b) and 300.604(b) are limited to promotion into a position in the competitive service. 5 C.F.R. § 300.603(a). [n4] The record indicates that the grievant was promoted to an excepted service position under a veterans readjustment appointment pursuant to 5 C.F.R. Part 307. [n5] Exceptions Attachment 2. Thus, §§ 300.603(b) and 300.604(b) are not applicable to the grievant's promotion. Accordingly, the Arbitrator's award is not contrary to those regulations. [n6]
The Agency argued before the Arbitrator that it had extended 5 C.F.R. §§ 300.603(b) and 300.604(b) to its excepted service employees by Agency regulation. However, an agency's voluntary adoption of a non-binding OPM regulation creates a provision with no greater legal authority than an agency regulation, and it is well-settled that, in circumstances such as those in this case, an agency regulation is superseded by a conflicting provision of a collective bargaining agreement. United States Dep't of Agriculture, Animal & Plant Health Inspection Serv., Plant Protection & Quarantine, 51 FLRA 1210, 1216 (1996). [n7] Accordingly, Article 22, [ v57 p592 ] Section 7(A)(1) of the parties' agreement, which the Arbitrator found required the grievant to be promoted upon the reclassification of his position, supersedes any Agency requirement that the grievant meet OPM qualification standards or time-in-grade requirements for promotion.
B. The Award is Not Contrary to the Back Pay Act
The Agency contends that the award is contrary to the Back Pay Act because the grievant did not meet time-in-grade requirements and qualification standards. Consistent with our finding that the award does not violate time-in-grade requirements or qualification standards, we conclude that the award also does not violate the Back Pay Act.
The Agency's exceptions are denied.
Footnote # 1 for 57 FLRA No. 111
The following promotions may be taken on a noncompetitive basis unless otherwise provided:
1. Promotion of the incumbent in a position that is reclassified at a higher grade due to the accretion of additional duties and responsibilities.
Footnote # 2 for 57 FLRA No. 111
[M]ay be taken without regard to this subpart but must be consistent with all other applicable requirements, such as qualification standards.
Footnote # 3 for 57 FLRA No. 111
Candidates for advancement to a position at GS-6 through GS-11 must have completed a minimum of 52 weeks in positions:
. . . .
(2) No more than one grade lower (or equivalent) when the position to be filled is in a line of work properly classified at 1- grade intervals.
Footnote # 4 for 57 FLRA No. 111
This subpart applies to advancement to a . . . position in the competitive service by . . . individual[s] . . . under nontemporary appointment in the competitive or excepted service.
Footnote # 5 for 57 FLRA No. 111
A veterans readjustment appointment is "an excepted appointment . . . to a position otherwise in the competitive service." 5 C.F.R. § 307.101(d). This wording has been interpreted to establish that veterans readjustment appointees are in the excepted service. See Collaso v. MSPB, 775 F.2d 296, 297-98 (Fed. Cir. 1985); Kane v. Department of Army, 60 M.S.P.R. 605, 609 (1994).
Footnote # 6 for 57 FLRA No. 111
We note that 5 C.F.R. Part 302, which applies to employment in the excepted service, provides agencies with considerable discretion in determining qualification standards and does not impose time-in-grade requirements. In addition, the OPM Operating Manual specifically establishes that agencies are not obligated to apply OPM qualification standards to employees serving under veterans readjustment appointments. OPM Operating Manual, Qualification Standards for General Schedule Positions, Part A ("qualification requirements in this Manual . . . may be used for . . . Veterans' Readjustment Appointment (VRA) applicants"). Thus, the Agency was not required to apply OPM qualification standards or time-in-grade requirements.
Footnote # 7 for 57 FLRA No. 111
Chairman Cabaniss notes that, while she agrees with the holding at 51 FLRA 1216, she does not agree with the holding in the Fort Campbell case (37 FLRA at 194) cited therein, in light of the conflict between that holding and her position set out in her dissent to the Authority's decision in United States Dep't of Justice, Fed. Bur. Of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 57 FLRA 158, 163-65 (2001).