Dept. of Veterans Affairs and NAGE Local R5-3593, 60 FLRA No. 13. 170.

Relying on an OPM advisory opinion, FLRA held that "a retroactive temporary promotion for more than 120 days cannot be awarded in the absence of competitive procedures," and therefore limited an award directing a temporary promotion of more than 2 years to a temporary promotion of no more than 120 days. The Authority indicated that FLRA precedent inconsistent with 5 C.F.R. ' 335.103(c) will no longer be followed.

The grievant, a GS-7 Computer Assistant at the time she filed her grievance, alleged that she had been performing the duties of a GS-9 Computer Specialist for approximately 2 years for which, under the agreement, she was entitled to a retroactive temporary promotion. The matter was referred to arbitration and the arbitrator found that the grievant had been assigned and performed the higher-graded duties from July 1999 to February 2002 and should have been temporarily promoted under the terms of the contract. He accordingly ordered a retroactive temporary promotion for the August 1999 - February 2002 period. He refused to consider the agency's claim that the contract required the use of competitive procedures for a temporary promotion more than 120 days on the ground that the agency had lost its right to enforce this provision when it failed to temporarily promote the grievant. The agency filed exceptions.

The Authority asked OPM for an advisory opinion on the following question:

Where an agency violates a collective bargaining agreement provision entitling employees to noncompetitive temporary promotions, and an arbitrator grants a retroactive temporary promotion of more than 120 days to remedy that violation with the retroactive promotion[,] what is the applicability, if any, of the requirements of 5 C.F.R. ' 335.103(c)(1)(i) that "competitive procedures" apply to promotions exceeding 120 days? If the requirements apply, what effect do they have on the arbitral remedy of a retroactive temporary promotion exceeding 120 days?

In its response, OPM said, among other things, that 5 CFR 335.103(c)(1)(I) applies to promotions exceeding 120 days and that "time-limited promotions of more than 120 days must be made pursuant to competition under an agency merit promotion plan." Based on its regulations and the facts of the case at bar, OPM advised FLRA that the instant award is contrary to OPM's Governmentwide regulation and thus the arbitrator exceeded his authority in ordering a retroactive temporary promotion in excess of the regulatory cap of 120 days.

The Authority noted that an agency's interpretation of its own regulations is controlling unless it is plainly erroneous or inconsistent with the language of the regulation. Finding unpersuasive the union's claim that OPM's interpretation of its own regulation is plainly erroneous, FLRA deferred to OPM's interpretation of 5 CFR 335.103(c) and concluded that "a retroactive temporary promotion for more than 120 days cannot be awarded in the absence of competitive procedures." It accordingly found that "to the extent that the award orders a retroactive temporary promotion that exceeds 120 days, it is inconsistent with 5 C.F.R. ' 335.103(c) as well as the agency's regulation on the matter." It modified the award by ordering a retroactive temporary promotion, with backpay, "effective August 1999 for a period of 120 days."

FLRA also announced that, "to the extent that Authority precedent would support a conclusion that the award in the circumstances presented here is not inconsistent with 5 C.F.R. ' 335.103(c), it will no longer be followed."

In her concurring opinion, Chairman Cabaniss believed that many employees file grievances (which cannot address classification issues) seeking temporary promotions rather than file a classification appeal. "I would hope that the 'forum shopping' that seems to go on in some of these cases could be eliminated by a greater emphasis on whether the higher-graded duties at issue have been temporarily or permanently assigned."

In her concurring opinion, Member Pope expressed the concern that OPM's interpretation of its regulations encourages agencies to violate, rather than comply with, ' 335.103(c). If an agency ignores competitive procedures in assigning higher-graded duties for more than 120 years, under OPM's regulations it is not required to pay for duties performed in excess of 120 days. "This provides agencies a strong financial incentive to ignore competitive procedures when they want to assign employees higher-graded duties for more than 120 days. I am skeptical that a regulation should be interpreted in a manner that encourages its own violation."

This decision should be brought to the attention of arbitrators hearing grievances involving requests for noncompetitive temporary promotions for more than 120 days. In the past many of them have ignored the limitations imposed by 5 C.F.R. ' 335.103(c). They may no longer do so. This decision should also be kept in mind when negotiating temporary promotion provisions.