42:0931(66)AR - - Air Force, Scott AFB, IL and NAGE Local R7-23 - - 1991 FLRAdec AR - - v42 p931
[ v42 p931 ]
The decision of the Authority follows:
42 FLRA No. 66
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award on remand of Arbitrator Gerald Cohen. In his original award,(*) the Arbitrator found that the grievance was not grievable under Agency regulation. The Union filed exceptions to the Arbitrator's award, and we concluded that we were unable to determine whether the award was deficient because the record was insufficient. Accordingly, we remanded the case to the parties for resubmission to the Arbitrator. In his award on remand, the Arbitrator ruled that the grievance was not grievable under the parties' collective bargaining agreement.
The Union has filed an exception to the award on remand 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 did not file an opposition to the Union's exception.
We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Initial Award
The parties had entered into a settlement agreement of an earlier grievance filed by the grievant over his performance rating for the appraisal period ending June 30, 1989. Under the settlement agreement the grievant's performance rating was raised to excellent. When the grievant failed to receive a cash award for this rating, he filed another grievance. The grievant claimed that he was entitled to an award because 29 other employees in his section, who were in the same job classification as the grievant and who were rated excellent or better, received cash awards. The grievance was not resolved and was submitted to arbitration.
The Arbitrator ruled that the grievance was not grievable. He found that under Air Force Regulation (AFR) 40-452, the nonreceipt of a cash award could not be grieved under the negotiated grievance procedure.
III. The Decision in 40 FLRA 421
The Union filed exceptions contending that the Arbitrator's determination that the grievance was not grievable was deficient.
We noted that under our decision in U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990) (Ft. Campbell), collective bargaining agreements, rather than agency regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement provision and the regulatory provision. However, we found in 40 FLRA 421 that the record was insufficient for us to determine whether the Arbitrator had found the grievance was not grievable consistent with Ft. Campbell. In 40 FLRA 421, we held that the Arbitrator did not determine whether the portion of the parties' collective bargaining agreement addressing the scope of the negotiated grievance procedure superseded the provision of AFR 40-452. Accordingly, we remanded the case for resubmission to the Arbitrator so that the Arbitrator could make the necessary findings concerning grievability consistent with Ft. Campbell.
IV. Arbitrator's Award on Remand
The Arbitrator noted that on March 8, 1987, the parties entered into an agreement stating that the nonreceipt of a cash award was not grievable unless the failure to grant an award was based on an unlawful practice. The Arbitrator found that by entering into this agreement, the parties had amended their collective bargaining agreement to add this exclusion to the scope of the negotiated grievance procedure. On remand, the Union claimed before the Arbitrator that the grievance was grievable because the grievant's nonreceipt of a cash award was based on an unlawful practice. From this claim, the Arbitrator inferred that the Union's position was "that since 29 other people were awarded the same type of a cash award, the refusal to give Grievant the same award is discriminatory." Award on Remand at 7.
In the Arbitrator's view, the term "unlawful practice" means a practice that violates a specific law. As an example, the Arbitrator stated that it would have been an unlawful practice to fail to grant the grievant a cash award because of his age, race, religion, sex, or physical condition. The Arbitrator noted that the Union did not allege that the Agency's failure to grant an award to the grievant "was based on his age, race, sex, religion, or anything of that nature. The inference was that it was a discriminatory denial simply because he was denied an award that 29 other people got." Id. The Arbitrator rejected the Union's claim. He found that the failure to grant an award to the grievant was not discriminatory "in the sense that it violates a law." Id. Because the Arbitrator found that the failure of the Agency to grant the grievant an award was not based on an unlawful practice, the Arbitrator ruled that the grievance was not grievable or arbitrable under the parties' collective bargaining agreement.
The Union contends that the award is contrary to law. The Union notes that the Arbitrator ruled that an unlawful practice means a practice that violates a specific law. The Union argues that, therefore, the award is deficient in that the Arbitrator did not decide whether the failure to grant the grievant a cash award violated section 7116(a)(4) of the Statute because it constituted discrimination against the grievant f