35:1167(130)AR - - HHS, SSA, Wichita, KS and AFGE Local 1336 - - 1990 FLRAdec AR - - v35 p1167
[ v35 p1167 ]
The decision of the Authority follows:
35 FLRA No. 130
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
May 30, 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 Robert H. Kubie filed by the Agency pursuant to 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 exceptions.
The Arbitrator sustained a grievance over the Agency's determination to withhold the grievant's within-grade increase. The Agency contends, among other things, that the award is contrary to law. According to the Agency, the Arbitrator did not have jurisdiction over the matter because the grievant did not request the Agency to reconsider the denial of the within-grade increase before she filed her grievance. For the following reasons, we agree that the award is contrary to law and will order that it be set aside.
II. Background and Arbitrator's Award
The grievant is employed by the Social Security Administration as a Claims Representative. By memorandum dated July 18, 1988, the Agency informed the grievant that her performance in one of her critical elements was unsatisfactory and that she was being placed on a Performance Improvement Plan. The memorandum also stated that the grievant's within-grade increase, for which she was to become eligible on August 28, 1988, would be withheld unless her performance in all critical elements was at a fully satisfactory level by that time.
After an exchange of memoranda between the grievant and the Agency, the Union filed a grievance on September 2, 1988, over the Agency's alleged failure to grant the within-grade increase on August 28. On September 12, 1988, the Agency notified the grievant by letter that her work performance continued to be less than satisfactory in certain areas and that a determination had been made to withhold her within-grade increase, effective September 8, 1988. The letter advised the grievant of her right to request reconsideration of this negative determination within 15 days. The grievant did not request reconsideration.
The grievance was denied at the first step on September 20, 1988. In its denial, the Agency informed the grievant that "the normal procedure of Within-Grade Increase denials is to request reconsideration within 15 days of the date of receipt of the decision. The fifteen day appeal period has not yet expired." Agency's Exceptions, Exhibit C at 4. When the grievance was denied at the second step on October 24, 1988, the grievant was again informed that "[t]he normal procedure for within-grade increase denials is to request reconsideration within 15 days of the date of receipt of the decision." Id. at 6. In that letter, the Agency also informed the grievant that "filing a grievance at the point you filed it is not consistent with the terms of our labor agreement. The time for requesting a reconsideration of the reconsideration officer . . . has now expired." Id. The grievance was subsequently denied at the final step of the grievance procedure and was submitted to arbitration.
The Arbitrator sustained the grievance. He found that the Agency had failed to provide the grievant 60 days' notice of its intent to withhold the increase as required by the parties' collective bargaining agreement. He also found that the Agency failed to sustain its burden of demonstrating that the employee was not performing at an acceptable level of competence. He ordered that the grievant receive any additional money, plus interest, that she would have received had she been granted the within-grade increase on August 28, 1988. He also ordered that any adverse performance evaluations or reviews be expunged from the grievant's record.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is contrary to law because the Arbitrator did not have jurisdiction over the case inasmuch as the grievant failed to request reconsideration as required by 5 U.S.C. § 5335(c). The Agency also asserts that the award is in "manifest disregard of the collective bargaining agreement" because the requirement to seek reconsideration is contained in the parties' contract as well as required by law. Exceptions at 6.
Finally, the Agency claims that it was denied a "full and fair hearing" because the Union raised and presented testimony on issues not raised prior to the hearing, thereby "surpris[ing]" the Agency. Id. at 8. The Agency claims that the Arbitrator improperly denied it a continuance to allow the Agency to prepare a response to these new issues.
B. Union's Opposition
The Union asserts that both parties had the opportunity to appear at the hearing and provide evidence and testimony. Opposition at 1. The Union contends that the Agency's exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact, evaluation of the evidence, reasoning and conclusions, and interpretation of the parties' collective bargaining agreement. Id. at 1-2.
We conclude that the award is contrary to law. In Patent Office Professional Association and U.S. Patent and Trademark Office, 34 FLRA 883 (1990), request for reconsideration denied, 35 FLRA No. 111 (1990), the Authority determined that 5 U.S.C. § 5335(c) and the implementing regulations issued by the Office of Personnel Management require an employee to have timely requested reconsideration of a denial of a within-grade increase before invoking negotiated grievance and arbitration procedures. The Authority concluded in that case that where an employee is properly notified of the obligation to request reconsideration but fails to do so, an arbitrator is without jurisdiction to decide the merits of a grievance challenging the denial.
It is not disputed that the grievant failed to request reconsideration of the Agency's denial of the within-grade increase before filing the gri