49:1150(110)AR - - HHS, Appalachian Laboratory for Occupational Safety and Health, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention & AFGE, Local 3430 - - 1994 FLRAdec AR - - v49 p1150



[ v49 p1150 ]
49:1150(110)AR
The decision of the Authority follows:


49 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

APPALACHIAN LABORATORY FOR OCCUPATIONAL SAFETY AND HEALTH

NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH

CENTERS FOR DISEASE CONTROL AND PREVENTION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3430

(Union)

0-AR-2527

_____

DECISION

May 31, 1994

_____

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 William J. Miller, Jr. filed by both the Union and the Agency 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 exceptions.

The Arbitrator sustained a grievance over the grievant's marginally successful mid-year progress review and the denial of his within-grade increase. The Arbitrator directed the Agency to provide the grievant with a written performance improvement plan and to grant his within-grade increase retroactively if his performance improved to an acceptable level of competence.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny those exceptions. We further conclude that the Agency has established that the portion of the award relating to the retroactive grant of the grievant's within-grade increase is deficient. Accordingly, we will strike that portion of the award. Because the Agency's other exceptions do not provide a basis for finding the award deficient, we will deny those exceptions.

II. Preliminary Matter

On October 29, 1993, the Director of the Authority's Case Control Office issued an Order stating that the Agency's exceptions failed to comply with the Authority's Rules and Regulations in several respects. The Order gave the Agency until November 12, 1993, to cure the deficiencies or risk dismissal of the exceptions.

In a motion filed with the Authority on January 18, 1994, the Agency requests the Authority to waive the time limit set forth in the Order and to accept its attached materials in satisfaction of the filing requirements outlined in the Order. The Agency asserts, in an affidavit, that the Agency's representative of record in this case did not receive the Authority's Order until January 4, 1994. In further support of its motion, the Agency provides a copy of a U.S. Postal Service certified return receipt that accompanied the Authority's Order, which shows the delivery date of the Order as January 4, 1994. Finally, the Agency states that it was unable to contact the Union's representative in order to obtain the Union's position on its motion.

Section 2429.23(b) of the Authority's Rules and Regulations permits the Authority to waive any expired time limit, with exceptions not relevant here, in extraordinary circumstances. In our view, the affidavit submitted by the Agency's representative averring that the Authority's Order was not delivered by the Postal Service until January 4, 1994, and the copy of a certified return receipt supporting this claim, sufficiently establish extraordinary circumstances. We also note that there is nothing in the record to indicate that the Agency's representative was aware of the Authority's Order before the time limit for filing the necessary documents had expired and, further, that the Agency responded to the Order within a reasonable amount of time after its receipt. In addition, there is no evidence that the Union would be prejudiced by granting the Agency's motion. Therefore, we find that a waiver of the expired time limit is justified and we will grant the Agency's motion. See, for example, U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 476, AFL-CIO, 32 FLRA 1261, 1263-64 (1988). Compare Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA 1235 (1988). Additionally, we find that the Agency has cured the deficiencies noted in our Order; therefore, we will consider the Agency's exceptions.

III. Background and Arbitrator's Award

The dispute in this matter arose when the grievant, an Industrial Hygienist for the Agency's Appalachian Laboratory for Occupational Safety and Health, received a performance rating of marginally successful on his mid-year progress review. The grievant was informed that his within-grade increase, due on September 6, 1992, would be denied. The grievant also was advised that he could request reconsideration of the denial of the within-grade increase. Thereafter, on August 25, 1992, the grievant submitted a request for reconsideration. In addition, a grievance was filed on September 9, 1992, claiming that management's appraisal of the grievant and the denial of his within-grade increase violated several sections of the parties' collective bargaining agreement. The grievance was processed through the various steps of the negotiated grievance procedure. The Agency denied the grievance with respect to the mid-year progress review and took varying positions with respect to whether the request for reconsideration had been properly filed. When the parties could not resolve the dispute, it was submitted to arbitration.

The parties did not stipulate the issues to be resolved at arbitration. After reviewing the progress of this dispute through the four steps of the parties' grievance procedure, as set forth below, the Arbitrator determined that two issues were appropriate for resolution: 1) the validity of the grievant's mid-year progress review; and 2) the denial of the within-grade increase.

The Arbitrator noted that when the grievance was filed at the first step, the Union alleged that the Agency had violated several articles of the parties' agreement in both rating the grievant and initiating a performance grading system that had not been negotiated with the Union. As a remedy, the Union requested that the grievant's mid-year progress review be "re-done" to reflect his previous performance rating. Award at 3. The Union also requested that the grievant's within-grade increase be granted because, among other things, he was not notified 60 days prior to the due date of the increase that his performance had declined, as required by the parties' agreement. The Agency responded that the grievant's within-grade increase had not, in fact, been withheld. The Agency explained that, as a result of the grievant's request for reconsideration, the Agency had decided to postpone for 60 days a decision as to whether the grievant's work was at an acceptable level of competence. The Agency also stated that it could not grant the increase at that time because the grievant's performance was not at an acceptable level of competence.

At the second step of the grievance procedure, the Union again requested that the Agency reappraise the grievant and grant his within-grade increase effective September 6, 1992. In response, the Agency claimed that because it had rescinded its initial denial of the within-grade increase, management did not have to respond to the grievant's request for reconsideration of the denial. The Agency also denied the grievance in all respects.

At the third step of the grievance procedure, the Union reiterated its claims with respect to the grievant's within-grade increase and mid-year progress review. Shortly thereafter, the Union advised management that it was amending its grievance to include a violation of Article 10, Section 6 of the agreement because the Agency had failed to respond to the grievant's request for reconsideration of the denial of his within-grade increase within 15 calendar days from the date it was received, as required by that provision of the agreement.(1) In response, the Agency again denied the grievance. Additionally, the Agency discussed the reasons for the delay in responding to the grievant's request for reconsideration.

At the final step of the grievance procedure, the Agency denied the grievance with respect to the mid-year progress review. The Agency asserted that the denial of the within-grade increase could not be considered as part of the grievance because, under Article 10 of the parties' agreement, a grievance over a within-grade denial could be filed only after a denial of a subsequent reconsideration request. In this connection, the Agency noted that the reconsideration decision was issued on December 22, 1992, after the grievance in this matter was filed and processed. The Agency stated that the grievant could challenge the denial of the within-grade by filing a timely grievance.

Subsequently, the Union requested an extension of time to file a grievance over the denial of the reconsideration concerning the within-grade increase. The Agency denied the Union's request.

Before the Arbitrator, the Union stated that management's action in appraising the grievant's performance violated law, rule, regulations, and various provisions of the parties' agreement. In this regard, the Union asserted that the Agency had violated Article 9, Section 4.l because the Agency did not immediately notify the grievant of his alleged performance deficiencies.(2) The Union also claimed that the Agency was biased in reviewing the grievant's performance. The Union requested that the Arbitrator provide retroactive relief and an appropriate award.

The Agency argued before the Arbitrator that the only issue properly before him was the validity of the grievant's mid-year progress review. For a variety of reasons, the Agency argued that the progress review was properly conducted. The Agency also asserted that any issues related to the denial of the grievant's within-grade increase were not ripe for consideration because they were prematurely raised. The Agency also maintained that the Union was improperly attempting to expand the nature and scope of the grievance.

In addressing the grievance, the Arbitrator initially found that Articles 9 and 10 of the parties' agreement were relevant to the resolution of the grievance. He also found that the scope of the arbitration before him included the denial of the grievant's within-grade increase. In this regard, the Arbitrator found that while the Agency had argued that there were several procedural deficiencies connected with the Union's grievance over this matter, the Agency also had engaged in procedural irregularities in considering and rendering a decision on the grievant's request for reconsideration. In particular, the Arbitrator noted that the Agency failed to render a decision concerning the grievant's request for reconsideration within 15 days as required under Article 10, Section 6.A of the agreement. The Arbitrator determined that it would not be fair to limit the grievance to the mid-year progress review because neither party had met all of the time limits established in the parties' agreement and the Union clearly had argued the within-grade increase issue throughout the grievance procedure.

The Arbitrator initially found that management properly completed the grievant's progress review under the terms of the parties' agreement. The Arbitrator also found, however, that the record demonstrated that the grievant had performance problems well before his mid-year progress review. Under Article 9, Section 4.l of the agreement, the Arbitrator held that once the Agency determined that the grievant's performance in a critical element was rated as less than fully met, it should have undertaken "immediate informal resolution efforts" to correct the performance deficiencies. Id. at 53. The Arbitrator found that the Agency had not taken appropriate action to correct the grievant's performance problems. The Arbitrator further found that the Agency's notification to the grievant of his performance problems in the mid-year progress review was insufficient to satisfy its obligations under the agreement. Based on the facts before him, the Arbitrator found that by failing to take corrective measures to help the grievant improve his performance "the Agency violated Article 9, Section 4l of the Agreement." Id. at 54.

Accordingly, as his award, the Arbitrator sustained the grievance and ordered the following:

The Agency shall develop a written performance improvement plan for the grievant, which shall contain provisions for counseling, training, or setting short term specific actions to be accomplished. Once completed, the written performance plan is to be reviewed with the grievant and implemented for a ninety[-]day period. Should it be determined that the grievant has corrected his problems during this ninety[-] day period, then he shall be entitled to his within[-]grade increase retroactive to September 6, 1992. If the grievant does not improve his performance sufficiently during the ninety[-]day period, then he shall not be entitled to receive a within[-]grade increase.

Id. at 55. The Arbitrator also retained jurisdiction for the purpose of resolving any dispute that might arise after the 90-day period concerning the denial or granting of a within-grade increase.

IV. Union's Exceptions

A. Positions of the Parties

The Union argues that the award is deficient because it contravenes law, rule, regulation, and the parties' agreement. In particular, the Union asserts that the Arbitrator failed to address all the agreement provisions that the Union claimed were violated by the Agency. These arguments included the Union's assertions that the Agency violated Article 9, Section 1 of the agreement by using an improper performance rating system to rate the grievant and Article 9, Section 4.r by lowering the grievant's performance rating at the mid-year progress review. The Union also contends that the Arbitrator failed to address its contention that, in rating the grievant, the Agency "considered factors outside the parameters of Article 9." Union's Exceptions at 2. The Union states that had the Arbitrator addressed the Agency's violation of Article 9, Section 4.r, he would have awarded the remedy requested by the Union. In this regard, the Union argues that the record supports an award granting the grievant a fully successful progress review and a reconsideration of the denial of his within-grade increase based on the fully successful rating. Finally, the Union contends that the Arbitrator failed to address its claim that the Agency "committed an unfair labor practice by refusing to comply fully with the discovery process." Id.

The Agency contends that the Union has identified no law, rule, or regulation with which the award is in conflict. The Agency claims that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's conclusions and, as such, provide no basis for finding the award deficient. In addition, the Agency notes that the parties did not stipulate the issues before the Arbitrator. Therefore, the Agency maintains that the Arbitrator could properly define the nature of the dispute and he was not obliged to address any particular issues raised by the Union. Finally, the Agency states that the Union's assertion regarding an unfair labor practice is simply an objection to the fact that the award does not discuss the Union's allegation, which the Arbitrator had earlier ruled was not properly before him.

B. Analysis and Conclusions

For the following reasons, we conclude that the Union has failed to show that the award is contrary to law, rule, regulation, or the parties' agreement, or that it is otherwise deficient under section 7122(a) of the Statute. Accordingly, we will deny the exceptions.

It is well established that in the absence of a stipulation by the parties, an arbitrator's formulation of the issues presented for resolution in arbitration is accorded substantial deference. For example, U.S. Department of the Air Force, Military Training Center, Lackland Air Force Base, Texas and American Federation of Government Employees, Local 1367, 41 FLRA 879, 881 (1991). In this case, the Arbitrator found that the issues before him concerned the validity of the grievant's mid-year progress review and the denial of the grievant's within-grade increase. In resolving these issues, the Arbitrator determined that Articles 9 and 10 of the parties' agreement were applicable and, more particularly, that the Agency had violated Article 9, Section 4.l and Article 10, Section 6.A. In our view, the Arbitrator's resolution of the grievance was directly responsive to the issues that he formulated. As such, the Union's exceptions fail to establish that the award is deficient. See U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Alderson, West Virginia and American Federation of Government Employees, Local 1494, 47 FLRA 95, 97 (1993). More particularly with respect to the Union's assertion that the Arbitrator failed to address all the provisions of Article 9, we have previously held that the fact that an award does not address specific provisions of an agreement does not establish that such provisions were not considered by the arbitrator and does not provide a basis for finding the award deficient. See U.S. Department of the Army, Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 45 FLRA 480, 482 (1992).

In addition, we find no merit to the Union's contention that the award is contrary to law, rule, and regulation. The Union has not cited any law, rule, or regulation with which the award itself is in conflict. Instead, the Union's arguments are based on its view that the Agency's conduct with respect to the mid-year progress review and the denial of the within-grade increase was inconsistent with law, rule, and regulation. We find that the Union's argument constitutes mere disagreement with the Arbitrator's findings and conclusions on the formulated issues and is simply an attempt to relitigate this case before the Authority. The exception does not provide a basis for finding the award deficient. For example, American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1112-13 (1990).

Finally, we reject the Union's assertion that the award is deficient because the Arbitrator failed to address the claim that the Agency committed an unfair labor practice when it failed to comply with a discovery process. There is no evidence that that issue was properly presented to the Arbitrator for his consideration.

Accordingly, we deny the Union's exceptions.

V. Agency's Exceptions

A. Agency's Contentions

The Agency argues that the award is deficient because it contravenes law and Government-wide regulation and fails to draw its essence from the parties' agreement.

In its first exception, the Agency contends that the award is deficient under 5 U.S.C. § 5335 and 5 C.F.R. Part 531, subpart D, which relate to within-grade increases. The Agency states that the Authority has considered these regulations and has held that an arbitrator is without jurisdiction to resolve a grievance challenging the denial of a within-grade increase unless the grievant "has requested and received a reconsideration decision prior to filing that grievance." Agency's Exceptions at 9. The Agency cites U.S. Department of Health and Human Services, Social Security Administration, Wichita, Kansas and American Federation of Government Employees, Local 1336, 35 FLRA 1167, 1169-70 (1990) (AFGE, Local 1336) and Patent Office Professional Association and U.S. Patent and Trademark Office, 34 FLRA 883, 886-88 (1990) (POPA), reconsideration denied, 35 FLRA 1020 (1990), in support. The Agency claims that its reconsideration decision was not rendered until December 22, 1992. Consequently, the Agency argues that there was no final Agency action for the Union to grieve on September 9, 1992, and the Arbitrator's consideration of the denial of the grievant's within-grade increase was contrary to law and regulation.

Alternatively, in its second exception, the Agency argues that, even if the Arbitrator had jurisdiction to consider the denial of the within-grade increase, the award is contrary to law and regulation concerning the granting of retroactive within-grade increases. According to the Agency, the only retroactive grant of a within-grade increase contemplated under 5 U.S.C. § 5335(c) is where a determination to grant such an increase supersedes an earlier denial of the increase. Here, the Agency argues that the portion of the award directing the Agency to place the grievant under a Performance Improvement Plan (PIP) to resolve his performance problems did not constitute a reversal of the within-grade denial. Rather, in the Agency's view, by directing a PIP, the Arbitrator recognized the validity of the Agency's determination that the grievant was not performing at an acceptable level. Therefore, the Agency contends that the only within-grade increase available under 5 C.F.R. § 531.411, "that could result from the successful completion of the PIP by [the grievant] would be prospective in nature." Agency's Exceptions at 11 (emphasis in original).

Finally, in its third exception, the Agency contends that the award is deficient because it fails to draw its essence from the parties' agreement. In this regard, the Agency argues that Article 24, Section 1 of the agreement "provides for the arbitration of 'any grievance processed in accordance with the procedures outlined in Article 23'" and that the only portion of the grievance that was timely processed thereunder pertained to the grievant's mid-year progress review. Id. at 12. The Agency reiterates its view that the issue of the denial of the grievant's within-grade increase was prematurely raised because the Agency had not rendered a reconsideration decision pertaining to the denial at the time the grievance was filed. The Agency contends that the Arbitrator's consideration of that issue is contrary to Article 10, Section 6 of the agreement, which provides that the right to file a grievance over the denial of a within-grade increase does not arise until after an employee has received a reconsideration decision from his or her third line supervisor. The Agency also reiterates that no decision was rendered on the reconsideration request until the request was denied on December 22, 1992. The Agency argues that because the parties' agreement does not provide for the consideration of an issue that was not timely presented in the grievance process, the Arbitrator's consideration of the within-grade increase issue fails to draw its essence from the agreement.

B. Analysis and Conclusions

For the following reasons, we conclude that the Agency's exception pertaining to the retroactive granting of a within-grade increase establishes that that portion of the award is deficient. Accordingly, we will strike the portion of the award that directs a conditional within-grade increase retroactive to September 6, 1992. The Agency's additional exceptions fail to establish that the award is deficient. Accordingly, we will deny those exceptions.

1. First Exception

We conclude that the Agency has not demonstrated that the Arbitrator's consideration of the within-grade increase issue is contrary to law or regulation.

The gravamen of the Agency's argument is that its decision on reconsideration of the denial of the grievant's within-grade increase was a condition precedent to the Union's filing of a grievance over this matter. In POPA and AFGE, Local 1336, we discussed the requirements of 5 U.S.C. § 5335(c) and its implementing regulations contained in 5 C.F.R. part 531, subpart D. We found, in relevant part, that in order for an employee to invoke negotiated grievance and arbitration procedures concerning a denial of a within-grade increase, the employee must have timely requested reconsideration of the denial. We also stated, more specifically in POPA, that a reconsideration decision constitutes a final agency action and that until that decision is rendered, there is no final agency decision to grieve.

In this case, the Arbitrator noted that the grievant had requested reconsideration of the within-grade increase denial in August 1992. The Arbitrator then found that the Agency failed to respond timely to that request under procedures contained in the parties' agreement. Given that finding, as well as the procedural irregularities committed by the Agency with respect to the handling of the grievant's reconsideration request, the Arbitrator concluded that the grievance over the within-grade denial was appropriate. Implicit in the Arbitrator's findings is a rejection of the Agency's arguments that the Agency had rescinded the within-grade denial and that the reconsideration decision was actually rendered on December 22, 1992. Instead, in concluding that the Agency violated the parties' agreement by failing to respond timely to the grievant's request, the Arbitrator was persuaded that that request was valid. In our view, the Arbitrator's conclusion that the Agency failed to respond timely to the grievant's request for reconsideration, which was submitted in August 1992, constitutes a finding that the Agency constructively denied the reconsideration. As such, there was a final agency decision on the reconsideration flowing from that failure to respond, which permitted the grievant to grieve the denial of the within-grade increase. Consequently, we find nothing in the award that is contrary to law and regulation, as the Agency claims. Instead, we find that the Agency is disagreeing with the Arbitrator's procedural ruling that the grievance over the denial of the within-grade increase was timely and properly filed. Such an exception does not provide a basis for finding the award deficient. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 43 FLRA 306, 311 (1991) (Tinker Air Force Base).

2. Second Exception

We conclude that the portion of the award directing the Agency to grant the grievant a retroactive within-grade increase is deficient as contrary to a Government-wide regulation. Accordingly, we will strike that portion of the award.

In National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 737 (1992), we addressed the negotiability of a union proposal that required the grant of a retroactive within-grade increase following acceptable performance at the end of a PIP period. We found that 5 C.F.R. § 531.412(b), which is a Government-wide regulation, provides that when an employee demonstrates an acceptable level of competence after a negative determination, a within-grade increase will be effective at the beginning of the pay period following the positive determination.(3) Accordingly, we found that the proposal was not negotiable because it was inconsistent with a Government-wide regulation.

In this case, the Arbitrator directed the Agency to grant the grievant's within-grade increase retroactively to September 6, 1992, if, following completion of a PIP period, the grievant improved his performance. We conclude that this portion of the award is deficient, as contrary to 5 C.F.R. § 531.412(b), because it would effectively grant a within-grade increase during the time that the grievant was not performing at an acceptable level of competence. In this regard, and as cited by the Agency, 5 C.F.R. § 531.411 provides that when a within-grade increase has been withheld, an agency may grant such an increase "when it determines that [the employee] has demonstrated sustained performance at an acceptable level of competence." Thus, a prospective within-grade increase is appropriate in this case if, after the 90-day PIP period directed by the Arbitrator, the grievant's performance improves to an acceptable level. Accordingly, we will modify the award to strike the portion that grants the within-grade increase "retroactive to September 6, 1992." Award at 55.

In light of this conclusion, we need not address the Agency's additional contention that this portion of the award is contrary to law.

3. Third Exception

We find that the Agency has not established that the award fails to draw its essence from the agreement.

In order for an award to be found deficient because it fails to draw its essence from the parties' agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, Defense Logistics Agency and American Federation of Government Employees, Local 1546, 44 FLRA 1015, 1019 (1992).

The Agency has not demonstrated that the award is deficient under any of these tests. The Agency's claim that the award fails to draw its essence from the agreement is predicated on its view that the parties' agreement did not allow for the consideration of the within-grade denial issue because it was not timely raised. As we stated in addressing the Agency's first exception, the Arbitrator found, based on his interpretation of the parties' agreement, that the grievance with respect to that issue was timely raised and was arbitrable. In our view, the Agency's exception amounts to mere disagreement with the Arbitrator's interpretation of the parties' agreement and the application of its procedural requirements to the grievance before him. The Authority consistently has held that disagreement with an arbitrator's determinations concerning procedural arbitrability generally provides no basis for finding an award deficient. See, for example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 105-06 (1992); Tinker Air Force Base, 43 FLRA at 311.

Accordingly, we deny this exception.

VI. Decision

The Agency's exception relating to the granting of a retroactive within-grade increase is sustained. Accordingly, the Arbitrator's award is modified by striking the requirement that the within-grade increase be granted "retroactive to September 6, 1992." Award at 55. The Agency's other exceptions, as well as the Union's exceptions, are denied.

APPENDIX

Article 9, Section 4.l of the parties' agreement pertinently provides:

If at anytime a supervisor determines that an employee's performance in a critical element is less than fully met, immediate informal resolution efforts will be made. The supervisor shall develop a written performance improvement plan which shall contain provisions for counseling, training or setting short-term specific actions to be accomplished before considering whether to initiate actions adverse to the employee (annual evaluation). If this determination falls within a 60-day period before the final evaluation, only then will the performance appraisal be delayed.

Article 10, Section 6 provides:

An employee may request reconsideration upon receipt of written notification that the within grade increase is to be withheld. Reconsideration can be requested each time the employee received a negative determination. Each time a negative determination is sustained on reconsideration, the employee may appeal in accordance with the negotiated grievance procedure. If an employee elects to request a reconsideration of their negative determination they have the right to request such action within 15 calendar days from the date of receipt of the negative determination notification. A longer period may be granted when there are valid reasons why employees cannot meet that time frame. The third line supervisor shall reconsider such requests. The supervisor with responsibility for reconsidering negative determinations will:

A. Issue a written notice of the reconsideration decision within 15 calendar days from the date that the reconsideration request was received.

B. Explain to employees in the written decision the basis for reversing or sustaining the negative determination, and the right to further review, which is: file a grievance through the negotiated grievance procedure.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 10, Section 6 of the agreement is set forth in the Appendix to this decision.

2. The language of Article 9, Section 4.l is set forth in the Appendix.

3. 5 C.F.R. § 531.412(b) pertinently provides:

When an acceptable level o