39:0465(37)AR - - AFGE Local 1923 and HHS, Health Care Financing Administration - - 1991 FLRAdec AR - - v39 p465
[ v39 p465 ]
The decision of the Authority follows:
39 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
HEALTH CARE FINANCING ADMINISTRATION
February 8, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Robert O. Harris filed by the Union 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 Agency filed an opposition to the Union's exception.
The Arbitrator found that a grievance over the Agency's failure to award the grievant a performance bonus was not arbitrable because it was not timely filed.
For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant is a Health Insurance Technician in the Agency's Office of Budget and Administration (OBA). For the 1988 calendar year rating period, the grievant received a performance rating of "Excellent" but did not receive a performance bonus for that period. On June 30, 1989, a grievance was filed alleging that the grievant's rating "entitled her to receive a performance bonus." Arbitrator's Award at 3. The grievance stated, in part:
On or about June 7, 1989 [the grievant] reviewed the Employee Performance Management System [EPMS] performance based award listing. . . . The listing showed appraisal awards for calendar year 1988. The listing made [the grievant] officially aware that employees in OBA who received a 1988 appraisal summary of excellent were entitled to receive a cash award.
Id. at 6. The parties exhausted the grievance procedure without resolving the dispute and the matter was submitted to arbitration.
The Arbitrator framed the issues as follows:
I. Is the grievance arbitrable in light of the fact that the grievance was filed in excess of twenty (20) working days after the date the employee reasonably should have been aware of the award denial?
II. Was the Agency obligated to award a cash bonus for the "Excellent" rating received for 1988?
Id. at 4.
The Agency argued before the Arbitrator that "the matter is not arbitrable because the grievance was not filed in a timely manner in accordance with the time limits contained in the agreement between the parties." Id. at 5. On the merits of the grievance, the Agency contended that its failure to provide the grievant with a performance award was not arbitrary or capricious.
The Union argued before the Arbitrator that "the grievance was timely filed as there was no clear indication as to when [the] grievant should actually have known about the payment of the bonus." Id. at 4. Further, the Union noted that "until the grievance went to arbitration, there was no question of timeliness raised by the Agency." Id. As to the merits of the grievance, the Union contended that the Agency may deny awards to employees rated "Outstanding" or "Excellent" only if there is "just cause." Id. at 4-5.
The Arbitrator determined that, pursuant to the parties' agreement, the Agency "properly raised the issue of arbitrability prior to submitting the request for a list of arbitrators." Id. at 5. Therefore, the Arbitrator stated that "the original grievance must be considered amended to include the issue of arbitrability." Id.
The Arbitrator stated that under the parties' agreement, "[a] grievance must be submitted in writing to the first line supervisor within twenty (20) working days of the date the employee became aware of the occurrence of an incident/event or it will not be considered." Id. at 6. In examining the circumstances surrounding the employees' notification and receipt of the 1988 performance bonuses, the Arbitrator noted that the Agency had distributed a flyer to employees on December 29, 1988, "address[ing] specifically the issue of notification of receipt of employee bonuses." Id. Further, the Arbitrator found that on May 10, 1989, the Agency had transmitted a memorandum to the Union listing the performance-based awards for the Health Care Financing Administration Employee Performance Management System for the calendar year ending December 31, 1988.
As to when the grievant should be deemed to have become aware of the incident in this case, the Arbitrator noted: (1) the Union's argument that the "contractual time limit should begin to run on June 7, 1989, the day the grievant was first informed of the reasons she would not receive a performance bonus"; and (2) the Agency's contention that "the grievant has offered no credible evidence or testimony to explain the procedural disability causing the late filing of the grievance approximately 37 working days after the Union was notified of who was receiving the bonus." Id. at 7.
The Arbitrator concluded that "the Agency made constructive notification of all bargaining unit employees by providing the Union the entire listing of the distribution of the 1988 performance bonuses[,]" and that the "grievant has failed to explain why it took her from May until the end of June to file her grievance." Id. at 8. Moreover, the Arbitrator stated that:
Had [the grievant] filed her grievance immediately after learning on June 7, 1989 the reason for the denial of her bonus, it might have been possible to find the grievance timely; however, by waiting an additional 17 days, [the] grievant clearly disregarded her responsibility under the contract to file her grievance in a timely manner.
As the Arbitrator determined that the grievance was not filed within the contractual time limit, the Arbitrator concluded that the grievance was not arbitrable.
III. Positions of the Parties
A. The Union
The Union excepts to the Arbitrator's finding that the grievance was untimely and, therefore, not arbitrable. In this regard, the Union argues that the "Arbitrator's Award is in contradiction to his own finding of fact." Union's Exception at 1. According to the Union, "the Arbitrator pointed out that the grievant learned on June 7, 1989, that the reason given by management for the denial of her bonus was inappropriate under the contract" and that the Arbitrator "found, as a matter of fact, that her grievance was filed 17 days later, 3 days within the contractual time limit." Id. at 1-2. Therefore, the Union requests that the Authority remand the case to the Arbitrator for a decision on the merits.
B. The Agency
The Agency contends that the award is not contradictory as to findings of fact and does not conflict with the parties' agreement. In this regard, the Agency maintains that it "followed the specific notice of December 29, 1988 to each employee with a notification to the Union on May 10, 1989, of the entire listing of the distribution of the 1988 performance bonuses for bargaining unit employees" and that "[t]his later fact was rightfully credited by the Arbitrator as constructive notification of the grievant." Agency's Opposition at 3.
The Agency further contends that the Union "misrepresents the facts upon which the Arbitrator based his decision" and that the