American Federation of Government Employees, AFL-CIO, Local 2206 (Union) and Social Security Administration, Southeastern Program Service Center, Birmingham, Alabama (Agency)

[ v59 p30 ]

59 FLRA No. 7

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2206
(Union)

and

SOCIAL SECURITY ADMINISTRATION
SOUTHEASTERN PROGRAM SERVICE CENTER
BIRMINGHAM, ALABAMA
(Agency)

0-AR-3631

_____

DECISION

August 14, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator D.L. Howell filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency violated the parties' agreement by failing to promote the grievants to the GS-9 level under a career-ladder. For the reasons set forth below, we deny the exceptions.

II.     Background and Arbitrator's Award

      The four grievants were selected as trainees in the position of Benefit Authorizer, GS-7, at the Agency's Southeastern Program Service Center Training Module. The Benefit Authorizer position is a career-ladder position with a journeyman grade of GS-9. After the grievants spent one year at the GS-7 level, the Agency granted them a within-grade salary increase. The Agency did not promote the grievants to the GS-9 level based on their performance. A grievance was filed challenging the Agency's failure to promote the grievants under the career-ladder. The grievance was unresolved and was submitted to arbitration on the following stipulated issue:

Did the Agency's failure to timely promote career ladder employees who were located in the Southeastern Program Service Center Training Module violate Articles 3, 21 or 26 of the National Agreement? If so, what shall the remedy be?

Award at 1. [n2] 

      Before the Arbitrator, the Union stated that Article 26 of the parties' agreement sets forth the criteria the grievants must satisfy to be eligible for promotion under the career-ladder. See id. at 3. The Union also stated that in order for the grievants to receive career-ladder promotions consistent with the requirements in 5 C.F.R. §§ 335.104 and 300.604, which the Agency had included as exhibits before the Arbitrator, the grievants had to have a rating of record of "fully successful" or higher and had to meet a one year time-in-grade requirement. See id. The Union argued that the grievants "met the promotion criteria as designated by the one-year time in grade requirement and a successful performance assessment rating." Id. at 4. The Union also argued that Article 26 requires the Agency to provide timely notice to employees if they are not meeting the criteria for promotion, and in this case such "notice was not given because the [grievants] met the criteria for promotion." Id.

      As a remedy, the Union requested that the Arbitrator direct the Agency to promote the grievants retroactively to the GS-9 level.

      The Agency argued that portions of the agreement did not apply to the grievants who were hired as trainees. Nonetheless, the Agency argued that it complied with Article 3 of the agreement as "[a]ll employees were treated fairly and equitably." Id. at 4. The Agency further argued that there was no violation of Article 21 and that the grievants "were given every opportunity to become successful." Id. at 5. The Agency also argued that it complied with Article 26 and asserted that the grievants were not promoted to the GS-9 level "because they were not progressing satisfactorily to the GS-9 journeyman level . . . ." Id.

      The Arbitrator determined that the Agency did not violate the parties' agreement by failing to promote the grievants to the GS-9 level. [n3]  The Arbitrator concluded that the Agency complied with the requirements of Article 3 as there was "no probative evidence" that the [ v59 p31 ] grievants were not treated fairly and equitably. Id. at 10.

      In addition, the Arbitrator concluded that the Agency complied with the requirements of Article 21. In this regard, the Arbitrator stated that the parties jointly established training guidelines for employees, entitled, "Local Agreement, Trainee Guidelines and Establishing the Training Module" (Trainee Guidelines). The Arbitrator explained that the Trainee Guidelines specifically removed portions of Article 21 from the training process for employees but encompassed other sections. [n4]  The Arbitrator found that there was no evidence that the Agency unfairly applied the Trainee Guidelines to the grievants. See id. at 11. The Arbitrator also found that "[p]rogress reviews and counseling" were provided to each grievant. Id.

      Further, the Arbitrator concluded that the Agency complied with the requirements of Article 26. The Arbitrator stated that promotions under a career-ladder are subject to law and the parties' agreement, and, therefore, are neither automatic nor mandatory. See id. at 14. The Arbitrator found that, although the grievants received a successful appraisal for purposes of a within-grade salary increase, the grievants did not meet the criteria for promotion to the GS-9 level under the career-ladder as set forth in the agreement and Training Guidelines. See id. In this regard, the Arbitrator pointed out that the grievants were unable to perform their duties without close supervision or help from a mentor. The Arbitrator further found that the Agency provided the grievants with the requisite prior notice that they were not progressing satisfactorily in order to be eligible for promotion under the career-ladder and advised the employees as to what they needed to do to become eligible. In this regard, the Arbitrator found that during the appraisal period the Agency provided the grievants several "counseling sessions and written notices" that they were not progressing satisfactorily. Id.

      In sum, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the award is contrary to law, rule and regulation, does not draw its essence from the agreement and is based on a nonfact.

      Specifically, the Union contends that the award is contrary to 5 C.F.R. § 335.104, 5 C.F.R. § 430.203 and 5 C.F.R. § 300.604. The Union asserts that, in order for an employee to be promoted to the GS-9 level under the career-ladder, the Agency requires that the employee receive a summary rating of successful and complete 52 weeks at the GS-7 level. The Union argues that, as the grievants satisfied the Agency's requirements for promotion under the career-ladder, the Arbitrator's denial of the grievance violated the cited regulations. In support, the Union cites Council of District Office Locals, AFGE, San Francisco Region, AFL-CIO, 5 FLRA 759 (1981) (Council of District Office Locals).

      In addition, the Union contends that the award does not draw its essence from Articles 3, 21 and 26 of the agreement. The Union asserts that the grievants were treated unfairly because the Agency promoted employees at the GS-5 level under the career-ladder but did not promote the grievants. The Union further asserts that the Arbitrator erred in relying on the Trainee Guidelines as it concerns "mentor review not promotions." Exceptions at 8. The Union also asserts that the grievants satisfied the criteria for promotion under the parties' agreement because the employees received a rating of successful and completed 52 weeks at the GS-7 level. The Union further argues that the Agency failed to provide the grievants with the requisite prior notice, under Article 26, that the grievants were not progressing satisfactorily in their positions and failed to advise the employees as to what they needed to do to become eligible.

      Finally, the Union contends that the award is based on a nonfact. The Union argues that the Arbitrator should not have relied on progress reports that were dated after July 24, 2000, a date that was less than 60 days prior to the earliest date of promotion eligibility. Consequently, the Union argues that the Arbitrator erred in finding that the Agency met the "60-day notice" requirement to inform the grievants as to what they needed to do in order to be promoted. Id. at 12.

B.     Agency's Opposition

      The Agency argues that there is nothing in the regulations cited by the Union that requires the Agency to

      promote the grievants under the career-ladder. The Agency also argues that the award is consistent with the agreement and that the award is not based on a nonfact.

IV.     Analysis and Conclusions

A.     The award draws its essence from the agreement

      The Authority will find an award deficient as failing to draw its essence from a collective bargaining agreement when the appealing party establishes 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not [ v59 p32 ] represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). We find that the Union's exception fails to meet any of the above criteria. The Arbitrator found that the Agency complied with the requirements of Article 3 as there was "no probative evidence" that the grievants were not treated fairly and equitably. Award at 10. The Union's claim that other employees at the GS-5 level were promoted to the GS-7 level does not establish that the Arbitrator's finding with respect to the grievants is irrational, implausible, or unconnected with the language of the agreement.

      The Union similarly has not demonstrated that the Arbitrator's interpretation of Articles 21 and 26 fails to draw its essence from the agreement. Article 21, Section 1 states that an annual certification of successful assures an employee of consideration for basic eligibility for promotion. Nothing in the Article requires that employees be promoted if they have received an annual certification of successful. Further, the Arbitrator found that the grievants did not satisfy the promotion criteria in Article 26 because they were not progressing satisfactorily in their position. The Union did not dispute this finding but claims that the Agency failed to notify the grievants of deficiencies and advise them as to what they needed to do to become eligible for promotion. However, the Arbitrator found that during the appraisal period the Agency provided the grievants several "counseling sessions and written notices" that they were not progressing satisfactorily. Id. at 13-14. The Union has not demonstrated that the Arbitrator's findings are irrational, implausible, or unconnected with the language of the agreement.

      Finally, the Union has not established that the Arbitrator erred in relying on the Trainee Guidelines because they relate to mentor review, rather than promotions. The Arbitrator found that the Guidelines encompassed certain sections of Article 21, and not others, and that there was no evidence that the Agency unfairly applied the Trainee Guidelines to the grievants. The Union does not except to these findings and has not demonstrated that they are irrational, implausible, or unconnected with the language of the parties' agreement.

      In sum, the Union fails to demonstrate that the Arbitrator's interpretation and application of Articles 3, 21 and 26 fails to draw its essence from the agreement. Accordingly, we deny the exception.

B.     The award is not contrary to law

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of the Air Force, Warner Robins AFB, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Union contends that the award is contrary to 5 C.F.R. § 335.104, which involves eligibility for career- ladder promotion and 5 C.F.R. § 300.604, which involves time-in-grade restrictions for promotion. The Union also contends that the award is contrary to 5 C.F.R. § 430.203, which defines certain terms related to performance management. The Union contends that, as the grievants satisfied the Agency's requirements for promotion under the career-ladder, the Arbitrator's denial of the grievance violated the cited regulations.

      There is nothing in the cited regulations that requires a career-ladder promotion when, as in this case, employees received a successful performance evaluation and worked 52 weeks at a lower grade. Here, the Arbitrator found that the grievants did not satisfy the promotion criteria in the agreement because they were not progressing satisfactorily in their position. Nothing in the regulations precludes an arbitrator from finding that, under a collective bargaining agreement, progressing satisfactorily in a position is a criterion an employee must satisfy to be entitled to promotion under a career-ladder. See NTEU, 32 FLRA 1141, 1148 (1988) (a career-ladder promotion can occur "when the conditions prescribed by agreement or regulation are met"). Accordingly, the exception provides no basis for finding the award contrary to the cited regulations.

      The Union's reliance on Council of District Office Locals is misplaced as that decision does not address the requirements of 5 C.F.R. § 335.104, 5 C.F.R. § 300.604 or C.F.R. § 430.203. Accordingly, we deny the exception.

C.     The award is not based on a nonfact

      The Union contends the award is based on a nonfact. In this regard, the Union argues that the Arbitrator should not have considered progress reports that were not timely furnished to the grievants. The Union argues that the Arbitrator erred in finding that the Agency met the "60-day notice" requirement to inform the grievants as to what they needed to do in order to be promoted. Exceptions at 12.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). [ v59 p33 ]

      Because the parties disputed before the Arbitrator whether the Agency provided timely notice to the grievants that they were not progressing satisfactorily, the Union's claim does not establish that the award is deficient. Accordingly, we deny the exception.

V.     Decision

      The Union's exceptions are denied.


APPENDIX

Article 3, Section 2.A provides, in part:

All employees shall be treated fairly and equitably in all aspects of personnel management . . . .

Article 21, Section 1 provides, in part:

An annual certification of "successful" assures employees of entitlement to within-grade increases, basic eligibility for promotion consideration, basic eligibility for award consideration and serves as a positive, tangible assertion that the employee is in good standing.

Article 21, Section 4 provides, in part:

A. All "successful" bargaining unit employees will receive an annual performance certification for the period October 1 through September 30, thereby certifying that the critical job duties and responsibilities have been performed at an acceptable level.. . .
B. When assessing performance, the employer will consider factors which affect performance that are beyond the control of the employee.
C. Formal progress reviews will not be required unless the supervisor believes the employee is not performing in a successful manner.

Article 26, Section 4.A. provides, in part:

A. At the time the employee reaches his/her earliest date of promotion eligibility, the Administration will decide whether or not to promote the employee.
1. If an employee is certified as successful and is meeting the promotion criteria in the career ladder plan, the Administration will certify the promotion which will be effective at the beginning of the first pay period after the requirements are met.
2. If an employee is not meeting the criteria for promotion, the employee will be provided with a written notice at least 60 days prior to earliest date of promotion eligibility. The written notice will state what the employee needs to do to meet the promotion plan criteria.

Dissenting Opinion of Chairman Cabaniss:

      I write separately in dissent on only one issue, that being whether the Union's contrary to law, rule, or regulation exception should be dismissed pursuant to § 2429.5 or our regulations, i.e., whether the Union raised this issue in the underlying arbitration proceeding. The Arbitrator's definition of the issues before him set forth only alleged contract violations (Articles 3, 21, and 26). The award also clearly references the fact that the Union asserted (and the Agency did not dispute) that the grievants met the regulatory promotion requirements of a successful performance appraisal and one year time in grade as a GS-7. However, there is nothing in the record from which to conclude that the Union argued, as an independent reason why the Agency's failure to promote the grievants was improper, that these same regulations mandated a career ladder promotion in all instances where an employee has a successful performance appraisal and one year time in grade. The award, both initially in describing the Union's arguments, and subsequently in