U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Department of Veterans Affairs, Alaska Health Care System, Anchorage, Alaska and American Federation of Government Employees, Local 3028, 0-AR-3418, November 20, 2001, 57 FLRA No. 111.

FLRA turned down agency exceptions to an award directing a promotion retroactive to the date of the reclassification of a position, finding that OPM's time-in-grade requirements don't apply because grievant had been promoted to an excepted service position under a veterans readjustment appointment pursuant to 5 CFR Part 307. Although DVA, by agency regulation, had extended OPM's time-in-grade requirements to its excepted service employees, the agency regulation was superseded by a conflicting provision in the collective bargaining agreement.

The grievant, a GS-6 excepted service employee, requested a promotion to GS-7 "[a]t about the same time" that the agency reclassified his position to GS-7. His request was denied on the ground that he didn't meet the qualification standards or the one-year time-in-grade requirement for promotion. (After reaching a year in grade, the grievant was subsequently promoted.) The union grieved, contending that under the agreement the grievant was entitled to promotion at the time his position was reclassified. The matter was referred to arbitration.

After finding that the grievant's position had been reclassified due to accretion of duties, and that the contract required promotion when that happens, the arbitrator ordered that the grievant be retroactively promoted on the date the position was reclassified and awarded the grievant backpay. The agency filed exceptions, claiming, among other things, that the award was contrary to OPM qualification standards under 5 CFR 300.603(b) and the time-in-grade requirements of 5 CFR 300.604(b). FLRA disagreed.

FLRA found that requirements of 5 CFR 300.603(b) and 300.604(b) weren't applicable to the grievant's promotion because those requirements are limited to promotions in the competitive service and 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." (In a footnote, FLRA noted that 5 CFR 307.101(d) states that a veterans readjustment appointment is "an excepted appointment . . . to a position otherwise in the competitive service. . . .This wording," said FLRA, "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).")

In also rejecting the agency's argument that it had extended the aforementioned requirements to its excepted service employees by agency regulation, FLRA said the following:

[A]n 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.

It should be noted that the "conflicting provision of a collective bargaining agreement" in this case reads as follows:

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 the higher grade due to the accretion of additional duties and responsibilities.

Although there is no express reference to the timing of the promotion action in the above contract provision, the arbitrator interpreted it as requiring promotion at the time the position is reclassified. And it is an arbitrator's non-precedential (and, here, unchallenged) interpretation of a contract provision that is used to determine whether it is inconsistent with an agency regulation.