32:0311(48)AR - - SBA and AFGE Local 2532 - - 1988 FLRAdec AR - - v32 p311



[ v32 p311 ]
32:0311(48)AR
The decision of the Authority follows:


32 FLRA No. 48

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

SMALL BUSINESS ADMINISTRATION
Agency

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2532
Union

Case No. 0-AR-1470

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Ira F. Jaffe filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Agency excepts to the Arbitrator's finding that the grievance was arbitrable. The Agency contends that the Arbitrator erred in finding that (1) the grievance was timely filed under the parties' Master Agreement and (2) the grievant had not made an election of remedies by initially filing his appeal with the Merit Systems Protection Board (MSPB). For the following reasons, we conclude that the Agency's exceptions must be denied.

II. Background

The grievant was classified as a Community Economic Industrial Planner, GS-1101-14. On August 26, 1983, the Agency informed him that as a result of a classification review, his position was being reclassified as Correspondence Clerk, GS-309-06, effective September 4, 1983. The grievant was also notified that he had the right to appeal the classification decision to the Office of Personnel Management (OPM).

The grievant appealed the Agency's action to MSPB, asserting that it constituted a reduction-in-force (RIF) and claiming that the Agency had failed to follow applicable RIF procedures. The Agency argued that MSPB should dismiss the grievant's appeal because he was a member of the bargaining unit and, therefore, the negotiated grievance procedure was the exclusive procedure for the grievant's appeal.

MSPB found that the grievant was a member of the bargaining unit and dismissed the appeal for lack of jurisdiction. On December 29, 1986, the Federal Circuit Court of Appeals affirmed the MSPB's decision. Baird v. Small Business Administration, No. 86-1194 (Fed. Cir. Dec. 29, 1986) (per curiam).

The grievant filed a grievance on January 13, 1987. The Agency took the position that the grievance was not timely filed within the 15 days specified by the parties' Master Agreement. The Agency also argued that the time limits for filing the grievance were not tolled by the grievant's appeal to the MSPB and the Federal Circuit and that the grievant had made a statutory election of remedies by pursuing his appeal to the MSPB and the Court.

The grievance proceeded to arbitration both on the threshold question of arbitrability and on the merits of the grievance. In the stipulated record before the Arbitrator, the Agency conceded the merits of the grievance and requested the right to address the question of the appropriate remedy at a subsequent hearing if the Arbitrator rejected its arbitrability contentions.

III. The Arbitrator's Award

The Arbitrator ruled first on the Agency's contention that the grievant's appeal to MSPB constituted an election of remedies under the Statute which precluded a subsequent appeal of the matter through the negotiated grievance procedure. He concluded that the grievant had not waived his right to file a grievance under the negotiated grievance procedure by pursuing an appeal to MSPB.

He found that the grievance involved the implementation of a RIF, an action which, under 5 U.S.C. § 7512(B), is not included among those agency actions under 5 U.S.C. §§ 4303 and 7512 subject to the election of remedies provisions of section 7121(e) of the Statute. Rather, he concluded that the negotiated grievance procedure was the exclusive procedure for consideration of the grievance. He also found that the grievance did not involve an election of remedies under sections 7116(d) or 7121(d) of the Statute. Finally, he rejected the Agency's argument that, as a matter of law, the principle of an election of remedies applies to any case which involves multiple filings.

As to the timeliness of the grievance, the Arbitrator concluded that the contractual time limits for filing a grievance should be tolled until the issuance of the Federal Circuit's decision on the grievant's appeal to MSPB. He found that because the grievance was filed within 15 days of that date, it was timely filed under the parties' Master Agreement.

In support of his conclusion that the grievance was timely filed, the Arbitrator found that: (1) by incorrectly characterizing its action as a reclassification and improperly informing the grievant that his appeal rights were limited to OPM, the Agency bore much of the responsibility for the fact that the grievant filed his appeal in the wrong forum; (2) by notifying the grievant more than 15 days after the "reclassification" action that he was a member of the bargaining unit, the Agency foreclosed any grievance filed at that point because it would have been untimely under the parties' Master Agreement; (3) the Agency did not indicate to the grievant at any time its willingness to waive the contractual time limits; (4) any disposition of the grievance achieved through the negotiated grievance procedure would be nullified if the grievant was ultimately found to be outside the bargaining unit; (5) the matter of the grievant's unit status was a disputed question concerning which credible evidence existed on both sides, as found by the Federal Circuit in its decision affirming the MSPB decision; (6) an arbitrator has inherent authority to toll contractual time limits; and (7) fundamental principles of fairness and due process require the tolling of the time limits in this case.

Based on his findings as to these issues, the Arbitrator concluded that the grievance was arbitrable. The Arbitrator also resolved "the merits of the grievance. . . in favor of the Grievant." Award at 27.

The Arbitrator remanded the question of an appropriate remedy to the parties based on the parties' agreement as to procedures for resolving the grievance and because of the inadequacy of the record before him. Thereafter, based on the parties' further submissions, the Arbitrator issued a Supplemental Opinion and Award. The Supplemental Opinion and Award incorporated the parties' agreement that the Agency would grant the grievant backpay, reinstate him to a comparable position, and expunge the RIF from his record. The Arbitrator also awarded the Union attorney fees incurred with respect to the grievance, which he found to be reasonable and warranted in the interest of justice. Finally, the Arbitrator denied the Union's request for injunctive relief, finding that the record did not support the type of "cease and desist" order sought by the Union.

IV. Positions of the Parties

A. Agency Exceptions

The Agency limited its exceptions to the Arbitrator's findings concerning the arbitrability of the grievance. The Agency claims that the Arbitrator's finding that the grievance was arbitrable is contrary to the parties' Master Agreement because the grievance was not timely filed. The Agency contends that nothing in the Master Agreement or applicable law requires the Agency to extend the time limits for filing a grievance. The Agency also contends that the grievant has not shown good cause for his failure to request a waiver of those time limits before filing his grievance.

The Agency also argues that the Arbitrator erred in finding that the grievant had not made an election of remedies in pursuing his appeal to MSPB. Referring to sections 7121(e) and 7116(d) of the Statute, MSPB regulations, and various MSPB and court decisions, the Agency argues that the Arbitrator has "misapplied the applicable law" by failing to conclude that the grievant is barred from pursuing his grievance under the negotiated grievance procedure. Agency Exception at 14.

B. Union Opposition

The Union contends that the Agency's exceptions amount to nothing more than disagreement with the Arbitrator's findings. Specifically, the Union argues that the Agency's exceptions regarding timeliness merely repeat arguments previously raised before the Arbitrator. As to the issue of an election of remedies, the Union argues that the Arbitrator correctly applied the Statute and existing case law and, thus, that the Agency's exception is without merit.

V. Discussion

We conclude that the Agency has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

The Agency claims that the Arbitrator's award as to the timeliness of the grievance is contrary to the parties' Master Agreement. This claim does not state a ground on which the Authority will find an award deficient under section 7122 of the Statute. That is, this claim does not allege that the award is contrary to any law, rule, or regulation or is deficient on other grounds similar to those applied by Federal courts in private sector labor-managment relations. Rather, the Agency is attempting to have the Authority review the Arbitrator's interpretation of the Master Agreement because it disagrees with the conclusions which the Arbitrator reached on the timeliness question.

A party's disagreement with an arbitrator's determination as to the procedural arbitrability of a grievance provides no basis for finding an award deficient. See American Federation of Government Employees, Local 1546 and Sharpe Army Depot, 22 FLRA 60 (1986) (an arbitrator's determination concerning compliance with the procedural requirements of the negotiated grievance procedure is not subject to review or challenge before the Authority). See also Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 29 FLRA 232 (1987) (exception to an arbitrator's determination as to the timeliness of a grievance denied on the ground that it does not provide a basis for finding an award deficient).

We also find that the Agency has not shown that the Arbitrator's determination as to an election of remedies is contrary to law. The Arbitrator found that the subject matter of the grievance concerned the Agency's failure to apply RIF procedures to the grievant's downgrading, that a RIF action was not an agency action covered by 5 U.S.C. §§ 4303 or 7512, and, thus, that the grievance was not subject to the election of remedies provisions of section 7121(e) of the Statute. The Agency does not challenge the Arbitrator's finding that the grievance concerns a RIF action and acknowledges that a RIF action involving a unit employee can be appealed only through the negotiated grievance procedure. Agency Exceptions at 11.

Further, the Agency has failed to establish that the Arbitrator erred in concluding that the grievance was not covered by the election of remedies provisions of sections 7116(d) and 7121(d) of the Statute. There is no evidence in the record to suggest, nor does the Agency contend, that the grievance in this case involved a prohibited personnel practice under 5 U.S.C. § 2302 so as to be barred from the grievance procedure by section 7121(d) because of the grievant's prior appeal to MSPB; nor does the Agency demonstrate that the grievance involved an unfair labor practice previously appealed to the Authority so as to be precluded from the grievance procedure by section 7116(d).

Finally, the cases cited by the Agency in support of its claim that the Arbitrator's award violates general principles of law governing an election of remedies concern the application of specific statutory and regulatory provisions which do not apply to the grievance in this case. The cases do not provide any support for the Agency's claim that general legal principles preclude a grievant from invoking the negotiated grievance procedure where the grievant had previously sought relief through some other appeals procedure. We conclude, therefore, that the Agency has not shown that the Arbitrator's award is deficient because it is contrary to applicable law governing the election of remedies.

VI. Decision

The Agency's exceptions are denied.(*)

Issued, Washington, D.C.,

______________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The Agency also requested a stay of the award when it filed its exceptions to the award with the Authority on December 15, 1987. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.



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