58 FLRA No. 126

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exception to an award of Arbitrator Peter A. Prosper 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 exception.

II.     Background

      Since May of 1997, the grievant worked for the County Farm Service Agency (an organization under the umbrella of the United States Department of Agriculture) as a County Program Assistant, which was classified as a CO-1101. Award at 4, 5. On June 7, 1998, the grievant accepted a transfer within the Agency to a Federal Program Technician position, GS-1101 (GS 7, Step 5), which the Arbitrator determined was essentially identical to her previous position, noting that it was "with the same Agency, performing the same duties, sitting at the same desk in the same office." Id. at 2, 5; Agency Exhibit 4. Approximately a year after the transfer, the grievant questioned why she did not receive an anticipated within grade step increase. Her supervisor advised her that "although all other terms and conditions of employment transferred to her new position, her waiting period for the step increase began anew." Award at 2.

      The parties agreed to the following issue before the Arbitrator:

Was the Grievant . . . improperly withheld a step increase? If so, what should the remedy be?

Id.

      The Arbitrator determined that the grievant was not "required to serve a probationary period when she transferred," and was, therefore, entitled to a within-grade step increase. Id. at 4. In reaching this determination, the Arbitrator relied in part on the parties' joint exhibit 3, Notice 27-PM-Amendment 7, finding that under it "County Office employees who move to a Federal position shall receive salary, benefits, leave and seniority with no break in service." Id. at 5. Moreover, the Arbitrator determined that there "is nothing in the legislation or the rules and regulations that preclude her from receiving a within grade increase." Id. at 5-6. Finally, the Arbitrator rejected the Agency's contention that the grievant was a "new" employee since she worked in her position for a long enough period of time without a break in service. Id. at 6. As such, the Arbitrator awarded the grievant a retroactive within-grade step increase to May 9, 2000. [n1]  Id.

III.     Agency's Exception

      The Agency argues that the grievant was not a "Federal" employee while she worked for the county. Exception at 2, citing 5 U.S.C. § 2105. As such, the Agency contends that under 5 C.F.R. § 531.405(b)(1), the requisite waiting period for the grievant's within-grade step increase did not begin until her initial appointment as the Federal Program Technicin  [n2]  Exception at 4. Moreover, the Agency argues that because the grievant's initial appointment to the Federal Government took place on June 7, 1998, and since the grievant had a required two year waiting period for her next step increase, the grievant was not entitled to a step increase until June 4, 2000. Id. at 4, (citing 5 C.F.R. § 531.405(a)(ii)). Accordingly, the Agency argues that the Arbitrator's award is contrary to regulation. Id. at 5. [ v58 p509 ]

IV.     Analysis and Conclusions

      Where a party's exception involves an award's consistency with law, the Authority must review the questions of law raised by the arbitrator's award and the party's exception de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

      In determining whether the grievant was a "Federal" employee or a non-Federal employee for the purposes of determining eligibility for a within-grade step increase under 5 C.F.R. § 531.405(b)(1), we first note that the grievant was originally hired as a "county" employee in the United States Department of Agriculture, Farm Service Agency, New York State office. In this respect, the enabling statute for the Consolidated Farm Service Agency, 7 U.S.C. § 6932, specifically states that the "Secretary may use interchangeably in local offices of the Agency both Federal employees of the Department and non-Federal employees of county and area committees" established under section 590h(b)(5) of Title 16. 7 U.S.C. § 6932(e)(1) (emphasis added).

      Moreover, the courts have found that county employees are not Federal civil service employees by virtue of the manner in which county employees are hired for their positions. See Moore v. Glickman, 113 F.3d 988, 992 (9^th Cir. 1997) (Moore); Hedman v. Dep't of Agriculture, 915 F.2d 1552, 1554 (Fed. Cir. 1990) (Hedman). In this respect, county employees are hired by, and serve at the pleasure of, a county executive [n3]  7 C.F.R. §§ 7.25(b)(1), 7.28, 7.29. The county executive is hired by a county committee which is elected. 7 C.F.R. § 7.21(b)(2), 7 C.F.R. 7.4. These county committee members are not considered to be Federal civil service employees because they are elected. Hedman, 915 F.2d at 1554. This determination is consistent with 5 U.S.C. § 2105, which states:

      For the purpose of this title, "employee", except as otherwise provided by this section or when specifically modified, means an officer and an individual who is -

(1) appointed in the civil service by one of the following acting in an official capacity -

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or,

(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;

      Accordingly, based on the above, a county executive is also not a civil service "employee" because he or she is not appointed by any of the above prescribed authorities. As such, county executives have been found not to be Federal employees within the civil service under § 2105. Moore, 113 F.3d at 992; Hedman, 915 F.2d at 1554. Therefore, county employees appointed by these executives are also outside the definition of "employee" under 5 U.S.C. § 2105. See also Buchholz, 210 F.3d at 864; Miller v. United States Dep't of Agriculture Farm Services Agency, USDA, 143 F.3d 1413, 1414 (11^th Cir. 1998) (county employees are not members of the civil service.)

      Even though certain individuals are outside the definition of employee in 5 U.S.C. § 2105, they may be considered Federal employees for specific purposes under Title 5 where the definition of employee is "specifically modified" in another section of Title 5. 5 U.S.C. § 2105(a). In this regard, county employees do enjoy some legal protections offered to Federal employees. For instance, 5 U.S.C. § 3502(a)(4)(C) includes county employees in the computation of length of service during a reduction in force; 5 U.S.C. § 6312 includes county employees in determining years of service for annual and sick leave calculations under 5 U.S.C. § 6303; 5 U.S.C. § 8901(G) includes these employees for the purposes of health insurance benefits; and 5 U.S.C. § 8701(a)(8) includes county employees for calculating life insurance. While not necessarily an exhaustive list, it does illustrate that when Congress has decided that these county employees are entitled to certain benefits, Congress has expressly included these county employees. See, e.g., Moore, 113 F.3d at 992. [ v58 p510 ]

      There is nothing in 5 U.S.C. §§ 5331 and 5102, the statutory provisions setting forth the definitions pertaining to within-grade increases, that specifically modifies the 5 U.S.C. § 2105 definition of employee to include county employees. Under § 5331, which governs employee pay rates, the terms "employee" and "agency" mean an agency and employee as defined in 5 U.S.C. § 5102. Section 5102 of title 5 provides that the term agency includes "an Executive agency," and also provides a list of specific agencies that are included and excluded from the definition. Neither the county and area committees nor the county employees are included on this list. Since there is no specific modification in this section of the general exclusion of county employees from § 2105, we conclude that Congress did not intend that they be considered employees for the purposes of Chapter 51, including the within-grade provisions of Chapter 53. See Hamlet v. United States, 63 F.3d 1097, 1106 (Fed. Cir. 1995) cert. denied, 517 U.S. 1155 (1996) (county employees excluded from coverage under the Back Pay Act, because they are not included in 5 U.S.C. § 2105, and the Back Pay Act does not modify the definition of employee to include them). As the court noted in Hamlet, "Congress obviously understood that this class of employees fall outside the definition in section 2105 because, when Congress has chosen to confer the benefits of employee status on ASCS county employees, it has done so in express terms." Id. (emphasis in original).

      Therefore, as previously analyzed, supra, the definition of employee under 5 U.S.C. § 2105 does not include county employees such as the grievant. Accordingly, the requisite waiting period for the grievant under 5 C.F.R. § 531.405(b)(1) did not begin until June 7, 1998, the date in which the grievant became a Federal employee within the definition of 5 U.S.C. § 2105.

V.     Decision

      Based on the foregoing, we find that the Arbitrator's determination is contrary to law and regulation and set aside the award.

   The Union had sought an increase retroactive to July 20, 1999, but the Arbitrator determined that the grievant was entitled to only a pay increase retroactive to 30 days prior to filing this grievance. Award at 6.

   5 C.F.R. § 531.405(b)(1) states that commencement of the waiting period for a step increase begins "[o]n the first appointment as an employee of the Federal Government, regardless of tenure."

   7 C.F.R. § 7.1, and the regulations set forth thereafter, specifically apply to the Agricultural Stabilization and Conservation Service. 7 C.F.R. § 7.1. However, as the 8^th Circuit noted in Buchholz v. Aldaya, 210 F.3d 862, 863 n.1 (8^th Cir. 2000) (Buchholz ), the Agricultural Stabilization and Conservation Service, and inferentially its regulations with the same title at 7 C.F.R. Chapter 7, became part of the Consolidated Farm Service Agency set forth in 7 U.S.C. § 6932. As such, these regulations are pertinent to our review.