34:0883(147)AR - - Patent Office Professional Association and Patent and Trademark Office - - 1990 FLRAdec AR - - v34 p883



[ v34 p883 ]
34:0883(147)AR
The decision of the Authority follows:


34 FLRA No. 147

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PATENT OFFICE PROFESSIONAL ASSOCIATION

and

U.S. PATENT AND TRADEMARK OFFICE

0-AR-1556

DECISION

February 16, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Nicholas H. Zumas. The grievant filed a grievance challenging the denial of his within-grade increase. The Arbitrator determined that under the statutory and regulatory scheme governing within-grade increases, an employee who is denied an increase must request reconsideration by the agency of the denial before filing a grievance over the denial. Because the grievant had not requested reconsideration, the Arbitrator found that the grievance was not arbitrable. Accordingly, the Arbitrator dismissed the grievance.

The Patent Office Professional Association (the Union) filed exceptions to the award 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 Patent and Trademark Office (the Agency) filed an opposition to the exceptions.

We conclude that the Union has not established that the Arbitrator's award is contrary to law. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant was denied a within-grade increase because the Agency determined that he was not performing at an acceptable level of competence. The grievant did not request the Agency to reconsider its decision. The grievant filed a grievance that was submitted to arbitration.

The Arbitrator stated that under 5 U.S.C. § 5335(c), an employee who is denied a within-grade increase on the basis of an agency determination that the employee is not performing at an acceptable level of competence ("the negative determination") is entitled to request reconsideration of the negative determination under uniform procedures prescribed by the Office of Personnel Management (OPM). The Arbitrator noted that in 5 C.F.R. § 531.410(d), OPM has provided that when a negative determination is sustained by the agency's decision on reconsideration, the employee has a right to appeal the decision to the Merit Systems Protection Board (MSPB). For bargaining unit employees, 5 C.F.R. § 531.410(d) provides that a reconsideration decision sustaining the negative determination is reviewable only in accordance with the terms of the collective bargaining agreement.

The Arbitrator also noted the explanatory comments by OPM when 5 C.F.R. § 531.410(d) was promulgated in the Federal Register. OPM explained that a proposal to make the reconsideration process optional for employees covered by collective bargaining agreements was rejected because the reconsideration process under 5 U.S.C. § 5335(c) is mandatory for all employees. Award at 15.

The Arbitrator determined that under this statutory and regulatory scheme, an employee must request reconsideration by the agency of the negative determination before filing a grievance over the denial of the within-grade increase. Because the grievant had not requested reconsideration of the negative determination, the Arbitrator concluded that he was without jurisdiction to decide the merits of the grievance. Accordingly, the Arbitrator dismissed the grievance.

III. The Union's Exceptions

The Union contends that the award is deficient for the following reasons:

1. The award contravenes the express requirement of section 7121 of the Statute that the negotiated grievance procedure shall be the exclusive procedure for resolving grievances that fall within its coverage.

2. The award is contrary to law in that it determines the jurisdiction of the Arbitrator by reference to 5 U.S.C. § 5335 rather than the Statute.

Exceptions at 4.

The Union maintains that the request for reconsideration is part of the statutory appeal procedure to MSPB set forth in 5 U.S.C. § 5335(c). The Union argues that under section 7121(a)(1) of the Statute, the parties' negotiated grievance procedure, which does not require reconsideration, replaces the statutory appeal procedure including the requirement for reconsideration. The Union asserts that 5 U.S.C. § 5335(c) does not contain wording which indicates congressional intent that the reconsideration process apply to the negotiated grievance procedure as well as the statutory appeal procedure.

The Union also claims that the Arbitrator erred by relying on OPM's statement in the Federal Register that the reconsideration process is mandatory for all employees. The Union argues that OPM's view constitutes "only advice and guidance" because it was not explicitly incorporated in 5 C.F.R. § 531.410(d). Exceptions at 4.

IV. The Agency's Opposition

The Agency asserts that the Union's exception that the award is contrary to law because it determines the jurisdiction of the Arbitrator by reference to 5 U.S.C. § 5335 should be dismissed because the exception fails to comply with the Authority's Rules and Regulations. The Agency argues that the Union has not sufficiently supported this exception, as required by section 2425.2 of the Authority's Rules and Regulations.

The Agency also argues that no basis is provided for finding that the award is contrary to law. The Agency maintains that the statutory and regulatory scheme established by 5 U.S.C. § 5335(c) and 5 C.F.R. § 531.410(d) limits grievances over denials of within-grade increases to challenges to the reconsideration decision.

The Agency also claims that the Union's arguments that the award violates the exclusivity requirement in section 7121 of the Statute are misplaced. The Agency maintains that there is no dispute that the parties' negotiated grievance procedure is the exclusive procedure for challenging denials of within-grade increases. The Agency asserts that the dispute concerns whether 5 U.S.C. § 5335(c) and 5 C.F.R. § 531.410(d) require an employee to request reconsideration of the negative determination before filing a grievance over the denial of the within-grade increase.

V. Analysis and Conclusions

A. The Union's Exception Is Not Procedurally Deficient

The Union's exception is not procedurally deficient. The Union's exception that the award is contrary to law because it determines the Arbitrator's jurisdiction by reference to 5 U.S.C. § 5335(c) adequately sets forth: (1) a statement of the ground on which review is requested; (2) arguments in support of this ground; and (3) specific reference to citations of authority. Therefore, the Union's exception complies with section 2425.2 of the Authority's Rules and Regulations. Accordingly, the Agency's motion to dismiss is denied.

B. The Union's Exceptions Provide No Basis For Finding the Award Deficient

For the following reasons, we conclude that under the statutory and regulatory scheme of 5 U.S.C. § 5335(c) and 5 C.F.R. § 531.410(d), an employee who has been denied a within-grade increase on the basis that the employee was not performing at an acceptable level of competence must be properly notified of the obligation to request reconsideration of the negative determination and the employee must then timely request reconsideration of the negative determination before filing a grievance challenging the denial of the increase.

5 U.S.C. § 5335(c) provides:

(c) When a determination is made under subsection (a) of this section that the work of an employee is not of an acceptable level of competence, the employee is entitled to prompt written notice of that determination and an opportunity for reconsideration of the determination within his agency under uniform procedures prescribed by the Office of Personnel Management. If the determination is affirmed on reconsideration, the employee is entitled to appeal to the Merit Systems Protection Board. If the reconsideration or appeal results in a reversal of the earlier determination, the new determination supersedes the earlier determination and is deemed to have been made as of the date of the earlier determination. The authority of the Office to prescribe procedures and the entitlement of the employee to appeal to the Board do not apply to a determination of acceptable level of competence made by the Librarian of Congress.

Subsection (c) was added to 5 U.S.C. § 5335 by the Federal Employees Salary Act of 1965, Pub. L. No. 89-301, 79 Stat. 1111 (the Act). As explained by the Senate Report, the Act added "new language so that in the event the employee loses his appeal for redetermination within his own department, he will have a right of appeal to the Civil Service Commission [CSC]." S. Rep. No. 910, 89th Cong., 1st Sess., reprinted in 1965 U.S. Code Cong. & Admin. News 3824. The Act also directed CSC to issue regulations which establish uniform procedures for reconsideration. The Senate Report stated that it would be "in the best interest of the Federal service" that the reconsideration process be uniform and that it be established by CSC. Id. As a result of the Civil Service Reform Act of 1978, the responsibility for issuing regulations which establish uniform procedures for reconsideration was assumed by the Office of Personnel Management.

Uniform procedures for reconsideration have been established in 5 C.F.R. part 531, subpart D. 5 C.F.R. § 531.410 provides, in part:

(d) When a negative determination is sustained after reconsideration, an employee shall be informed in writing of the reasons for the decision and of his or her right to appeal the decision to the Merit Systems Protection Board. However, for an employee covered by a collective bargaining agreement a reconsideration decision that sustains a negative determination is only reviewable in accordance with the terms of the agreement.

Consistent with 5 C.F.R. § 531.410(d), MSPB requires an employee to request reconsideration of the negative determination in order to be entitled to appeal the denial of a within-grade increase to MSPB unless the agency has improperly denied the employee an opportunity to request reconsideration. For example, Bueshel v. HHS, 7 MSPR 21 (1981).

In promulgating 5 C.F.R. § 531.410(d), OPM rejected a proposal that the reconsideration process be made optional for bargaining unit employees. OPM explained in the Federal Register that the reconsideration process is "mandatory by law." 46 Fed. Reg. 2318 (1981).

We agree with OPM's interpretation. 5 U.S.C. § 5335(c) prescribes a reconsideration process and provides that an employee's appeal to the MSPB is from the reconsideration decision. The legislative history to 5 U.S.C. § 5335(c) demonstrates Congress' intent that the reconsideration process be uniform throughout the Government. Although this legislative history predates the Civil Service Reform Act, we believe that, nonetheless, in this specific area consistency is required. Consequently, we agree with OPM that the reconsideration process is mandatory for all employees, including those in bargaining units. The reconsideration decision is the final decision of the agency and until that decision is rendered, there is no final agency decision to grieve. Requiring bargaining-unit employees to grieve the agency's decision on reconsideration, rather than the original negative determination, ensures consistency in the reconsideration process.

Therefore, we find that when an agency has properly informed an employee of the right to request reconsideration of a negative determination, 5 U.S.C. § 5335(c) and 5 C.F.R. § 531.410(d) require that an employee must have timely requested reconsideration in order to challenge a denial of a within-grade increase. This requirement applies whether the applicable procedure to challenge the denial is the negotiated grievance procedure or an appeal to MSPB.

The Union's contentions and citation to Authority precedent pertaining to the exclusivity of the grievance procedure are misplaced. As the Arbitrator correctly stated, the negotiated grievance procedure is the exclusive procedure for bargaining-unit employees to challenge denials of within-grade increases unless the matter has been excluded from the scope of the grievance procedure by agreement of the parties. Our decision here does not affect the exclusivity of the negotiated procedure. Rather, we conclude only that under the statutory and regulatory scheme of 5 U.S.C.