48:0612(61)AR - - Navy, Long Beach Naval Shipyard, Long Beach, CA and Federal Employees Metal Trades Council - - 1993 FLRAdec AR - - v48 p612



[ v48 p612 ]
48:0612(61)AR
The decision of the Authority follows:


48 FLRA No. 61

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

LONG BEACH NAVAL SHIPYARD

LONG BEACH, CALIFORNIA

(Agency)

and

FEDERAL EMPLOYEES METAL TRADES COUNCIL

(Union)

0-AR-2428

_____

DECISION

September 30, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Robert D. Steinberg 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 did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency's administration of its merit promotion program contravened Federal laws, rules, and regulations and the parties' collective bargaining agreement. The Arbitrator found that the matter was not arbitrable under the parties' agreement. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievance in this matter arose after the grievant was not selected for a promotion to a supervisory position. According to the Arbitrator, the grievant claimed that he failed to receive a maximum score in his bid for the supervisory position because he had never been assigned to such a position on a temporary or interim basis and, therefore, was not awarded credit for such service. In addition, other employees were alleged to have improperly received credit for service in a supervisory position. When the parties did not resolve the dispute, it was submitted to arbitration.

The parties stipulated to the following issues for resolution at arbitration:

1. Is the grievance non-arbitral either because of lack of substantive jurisdiction or because it was not timely filed and/or processed?

2. If the grievance is arbitral, do the Agency's policies, procedures and practices regarding promotion violate law, rules, and/or regulations, and by reference the collective bargaining agreement?

3. If so, what is the appropriate remedy?

Award at 2 (footnote omitted).

As to the arbitrability of the grievance, the Union argued before the Arbitrator that Article 17 of the parties' collective bargaining agreement, entitled Merit Promotions, had to be read and applied in conjunction with pertinent laws and regulations pertaining to promotions. According to the Union, those laws and regulations, in some instances, could be controlling over the agreement.(1) As to such laws and regulations, the Union cited Chapter 335, subchapter 1-6 of the Federal Personnel Manual (FPM) and 5 C.F.R. Part 300 for the proposition that negotiated grievance procedures are to be used to resolve disputes over the procedures used by an agency to identify and rank qualified candidates for a position. The Union argued that only when employees "have been 'properly ranked' . . . is non-selection removed from the grievance procedure . . . ." Id. at 9 (emphasis deleted).

The Agency disputed the Union's claim that this matter was arbitrable by asserting that the grievance concerned a supervisory position. In this regard, the Agency argued that Article 17, Section 10, under which the grievance assertedly arose, applies only to bargaining unit positions and does not apply to "any aspect of Agency judgment in assessing promotability to supervision." Id. at 9-10. Instead, the Agency asserted that disputes over the failure to promote an employee to a supervisory position are excluded from the negotiated grievance procedure contained in Article 31 of the parties' agreement. In addition to its arguments on the arbitrability of the grievance, the Agency also claimed that the grievance should be denied because it was untimely filed.

The Arbitrator found that the grievance was not timely filed. However, he noted that an untimely filing may be excused by the Agency. In this case, the Arbitrator concluded that the Agency's failure to object to the untimely filing at the stages of the grievance processing prior to arbitration constituted the Agency's option "to forego its procedural defense." Id. at 10.

Next, the Arbitrator found that the grievance was not arbitrable. In reaching this result, the Arbitrator examined provisions contained in Articles 17 and 31 pertaining to merit promotions and the grievance procedure. The Arbitrator found that Article 17 contained broad language that was supportive of the Agency's position that the manner in which applicants for supervisory positions are rated and ranked is not grievable. However, the Arbitrator found that another section of Article 17 did not seem to limit grievances to non-supervisory, bargaining unit promotions. As to Article 31, the Arbitrator found that the items excluded from the negotiated grievance procedure included "nonselection from a group of properly ranked and certified candidates" and "earned rating in connection with a merit promotion action." Id. at 11. The Arbitrator found that while the grievant

may argue that he is not protesting his non-selection, or that he was not properly ranked, his ranking (if certified) is dependent upon his actual rating, correct or incorrect, proper or improper, and Article 31, Section [2](g) specifically removes "earned rating in connection with a merit promotion action" from the contractual grievance procedure.

Award at 11-12 (footnote omitted).(2)

The Arbitrator noted that, while statute and regulations that "are superior to the collective bargaining agreement" suggest that an employee has the right to complain if he or she is improperly evaluated and ranked, "neither the FPM nor Title 5, Part 300 of the CFR mandates the use of the negotiated grievance procedure." Id. at 12. Rather, the Arbitrator found that the parties' collective bargaining agreement was "more specific in reciting what is excluded from the grievance procedure . . . ." Id. The Arbitrator further noted that while 5 C.F.R. § 300.104 allows for a choice between an agency grievance system or a negotiated grievance system, the use of the negotiated grievance system must be based on the mutual agreement of the parties. Here, the Arbitrator found that the parties "have purposely excluded questions about promotional evaluation and scoring from the negotiated grievance procedure." Id. at 13. The Arbitrator also stated that the parties did not intend for their negotiated grievance procedure "to apply to promotion to non-bargaining unit positions except for procedural and ministerial considerations[.]" Id. Instead, the Arbitrator found that the Agency's grievance system contained the rules and regulations designed to implement the statutory provisions and regulations "contained in FPM Chapter 335, Subchapter 1-6, and CFR Title 5, Part 300." Id.

Based on the above findings, the Arbitrator concluded that the grievance was not arbitrable. Therefore, he denied the grievance.

III. Exceptions

In its first exception, the Union argues that the Arbitrator "substantively misstated the pivotal facts" pertaining to the matter in dispute. Exceptions at 1. The Union argues that the grievance was based on a challenge to the procedures and practices the Agency used and continues to use in its administration of its merit promotion program and was predicated on provisions contained in the FPM. The Union argues that the Arbitrator misstated the basis of the grievance as the grievant's failure to receive a maximum score because he had not been assigned a temporary promotion to a supervisory position while other employees had received improper credit for such promotions. The Union asserts that the Arbitrator's "substantively flawed interpretation of the pertinent facts" provides a basis upon which to remand the case for a hearing on the merits of the grievance. Id. at 2.

In its second exception, the Union argues that the award is contrary to law. Specifically, the Union asserts that the award permits the Agency to "divest" itself and bargaining unit employees from the coverage of "clearly superior [F]ederal rules, regulations, and ultimately, laws." Id.

In its third exception, the Union argues that the award is "antiethical [sic] to sound public policy." Id. at 1. According to the Union, the grievance pertained to a variety of laws, rules, and regulations relating to promotion and personnel policies. The Union argues that the effect of the award will permit the Agency to continue its "corruption" of such laws, rules, and regulations. Id. at 2.

IV. Analysis and Conclusions

We will find an award deficient under section 7122(a) of the Statute when it is contrary to law, rule, or regulation, or is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. The Union has failed to establish that the Arbitrator's award is deficient on any of these grounds. Accordingly, we will deny the exceptions.

A. First Exception

In this exception, the Union essentially contends that the Arbitrator misconstrued the basis of the grievance. The Union maintains that, as a result of the Arbitrator's "flawed interpretation[,]" the case must be remanded for a hearing on the merits of the grievance. Exceptions at 2. We disagree.

Initially, we find that the Union's exception constitutes an assertion that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority by resolving an issue not submitted, or awarding relief to persons who are not encompassed within the grievance. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 700, 703 (1990). In our view, the Union is merely disputing the manner in which the Arbitrator addressed one of the stipulated issues that had been presented to him for resolution. In this connection, the first issue raised before the Arbitrator was whether the grievance was arbitrable based on the "lack of substantive jurisdiction . . . ." Award at 2. The Arbitrator examined the relevant provisions of the parties' agreement as well as the authorities cited by the Union and concluded that the grievance was not arbitrable. In finding that the grievance was not arbitrable, the Arbitrator's award is directly responsive to the stipulated issue. See, for example, U.S. Department of the Air Force, Altus Air Force Base, Oklahoma and American Federation of Government Employees, Local 2586, 41 FLRA 256, 258 (1991). Compare U.S. Department of the Treasury, Internal Revenue Service, Oklahoma City District, Lawton, Oklahoma and National Treasury Employees Union, Chapter 45, 37 FLRA 775, 781-82 (1990) (arbitrator exceeded authority by determining that an issue was not before him despite the parties' stipulation to the contrary). Consequently, we find nothing in the Union's exception that provides a basis for finding the award deficient.

Moreover, contrary to the Union's contentions that the Arbitrator misrepresented or ignored the fact that the grievance alleged a violation of various rules and regulations and misstated the Union's view that those rules and regulations were controlling over the parties' agreement, the Arbitrator specifically addressed those contentions and specifically found that neither the FPM nor the C.F.R. provisions relied on by the Union mandated the filing of a grievance through the negotiated grievance procedure. The Arbitrator found that the parties' agreement excluded certain grievances from coverage under the negotiated grievance procedure and that the Agency's grievance system constituted the proper forum for resolving the issues raised by the grievance.

In sum, we conclude that the Union has failed to establish that the award is deficient on the ground that the Arbitrator exceeded his authority. Accordingly, there is no basis on which to grant the Union's request that the case be remanded to the Arbitrator for a decision on the merits of the grievance.

B. Second Exception

The Union claims that the award is contrary to law, rule, and regulation. However, the Union cites no law, rule, or regulation with which the award allegedly conflicts. Presumably, the Union is relying on the same provisions of the FPM and the C.F.R. that were raised before the Arbitrator. As we noted in connection with the Union's first exception, the Arbitrator considered the rules and regulations that the Union claimed were controlling over the parties' agreement. The Arbitrator concluded that those rules and regulations did not mandate the use of the parties' negotiated grievance procedure to resolve the dispute in this case. Rather, the Arbitrator found that the parties' agreement excluded the matter from coverage under the negotiated grievance procedure. To the extent the Union's exception is a reiteration of its claim that the agreement is subordinate to various rules and regulations, we find no basis on which to hold that the award is deficient, as explained more fully below.

First, FPM Chapter 335, subchapter 1-6, merely states that complaints over a promotion action "shall be resolved under appropriate grievance procedures." It does not mandate the use of the parties' negotiated grievance procedure to resolve the type of dispute presented in this case. Similarly, 5 C.F.R. Part 300, which governs employment practices that affect recruitment, measurement, ranking, and selection of individuals, does not mandate the use of the negotiated grievance procedure. Specifically, 5 C.F.R. § 300.104 provides that grievances filed with an agency that challenge employment practices "shall be filed and processed under the agency grievance system established in accordance with part 771 of this chapter, or a negotiated grievance system." Thus, this section of the C.F.R. provides the parties with a choice of forums. However, the Arbitrator found that the parties had excluded certain matters from their negotiated grievance procedure, thereby rendering the Agency's grievance system as the only forum available. In this regard, we note that 5 C.F.R. § 771.104(a)(2)(ii) specifically provides that an agency's administrative grievance system cover bargaining unit employees "[w]here a negotiated grievance procedure excludes the matter at issue[.]"

Consequently, we find nothing in the record that demonstrates that the award is contrary to any law, rule, or regulation. In the absence of any such evidence, we find that this exception provides no basis for finding the award deficient. See, for example, Defense Logistics Agency, 47 FLRA 962, 968 (1993).

C. Third Exception

The Union argues that the Arbitrator's award is contrary to sound public policy because it will permit management to continue to ignore pertinent laws, rules, and regulations pertaining to promotions and personnel practices. In our view, this exception does not establish that the award is deficient.

Under section 7122(a)(2) of the Statute, we will find an arbitration award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, this ground is "extremely narrow." U.S. Postal Service v. National Association of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 485 U.S. 680 (1988).  In order to find the award deficient, the public policy in question must be "explicit," "well defined and dominant[.]" W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983). In addition, the policy is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id.; accord United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987) (Misco). The violation of such a public policy "must be clearly shown" if an award is to be found deficient. Misco, 484 U.S. at 43.

We conclude that the award in this case is not inconsistent with public policy. The Union has not demonstrated that the finding by the Arbitrator that the parties had excluded grievances over applicant ratings for supervisory positions from the parties' negotiated grievance procedure violates an "explicit" public policy based on "well defined" and "dominant" laws and legal precedents. To the contrary, section 7121(a)(2) of the Statute permits parties to exclude certain matters from their negotiated grievance procedures. See, for example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic Topographic Center and American Federation of Government Employees, Local 3407, 34 FLRA 44, 45 (1989) (parties' negotiated grievance procedure excluded arbitration of performance rating appeals). Additionally, the Union has not established that the Arbitrator's interpretation of the regulatory authorities relied on by the Union is inconsis