National Aeronautics and Space Administration, Goddard Space Flight Center, Greenbelt, Maryland (Agency) and Goddard Engineers, Scientists, and Technicians Association, International Federation of Professional and Technical Engineers (Union)

[ v62 p348 ]

62 FLRA No. 62

NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
GODDARD SPACE FLIGHT CENTER
GREENBELT, MARYLAND
(Agency)

and

GODDARD ENGINEERS, SCIENTISTS
AND TECHNICIANS ASSOCIATION
INTERNATIONAL FEDERATION
OF PROFESSIONAL AND
TECHNICAL ENGINEERS
(Union)

0-AR-4071

_____

DECISION

January 30, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

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

      The Arbitrator found that a grievance concerning an accretion-of-duties promotion was not procedurally or substantively arbitrable. For the reasons discussed below, we dismiss the Agency's exception on the ground that it seeks an advisory opinion.

II.     Background and Arbitrator's Award

      The grievant, a GS-13 employee, applied for an accretion-of-duties promotion. On July 11, 2003, the grievant's supervisor called to inform him that his promotion was not approved. The grievant, thereafter, spoke to his supervisor and the Director of the Flight Programs and Projects Directorate (Director) about the denial. Subsequently, on July 30, 2003, the grievant filed a Step 2 grievance, in which he alleged that discrimination was the reason for the denial of his promotion. The Agency denied the Step 2 grievance on timeliness grounds, asserting that the grievance was not "filed within ten (10) work days" after the Agency's denial of the Step 1 grievance, as required by the parties' collective bargaining agreement (CBA). Award at 4. The grievant filed a Step 3 grievance in which he added the claim that the Agency engaged in retaliation for a prior equal employment opportunity (EEO) complaint he had filed.

      The grievance was denied and the matter was submitted to arbitration on the following agreed-upon issue, "Is the grievance procedurally and substantively arbitrable?" Id. at 2.

      According to the Arbitrator, the dispute "centers on whether [the] exchange [between the grievant and his supervisor and the Director] properly constituted a Step 1 grievance[]" under the parties' CBA. Id. at 4. The Arbitrator stated that, according to the Agency, the discussion constituted a Step 1 grievance while the grievant considered it only a discussion and not a declaration of a Step 1 grievance.

      Interpreting the parties' CBA, the Arbitrator found that the CBA is clear that "Step 1 is a verbal discussion with supervision." Id. at 10. The Arbitrator found that the grievant "knew" on the day that he had the discussion with his supervisor and the Director that his application for an accretion-of-duties promotion had been denied. Id. at 10. She also found that "the Step 2 grievance . . . in several places explicitly referred to a Step 1 grievance." Id. at 11. Accordingly, the Arbitrator concluded that the discussion between the grievant and his supervisor and the Director constituted a Step 1 grievance and that the Step 2 grievance was filed "untimely" under the parties' CBA. Id.

      Concerning whether the grievance was substantively arbitrable, the Arbitrator found that the grievant's testimony established that the Step 2 grievance invoked discrimination without any evidence to support the allegation and that it was an "attempt" to challenge the denial of his accretion-of-duties promotion. Id. The Arbitrator found that, as the grievance "concerned a claim involving a permanent promotion based on accretion[-]of[-]duties," it concerned a "classification matter" that could not be grieved under the parties' CBA. Id. at 15, 11. In reaching this determination, the Arbitrator noted the Union's assertion that the grievant "has the right under the [S]tatute to elect the option of filing a discrimination grievance involving classification." Id. at 11. The Arbitrator stated that "[o]n the face of it, that is a true statement, but the underlying facts nullify that position[,]" and thus the grievance "did not fall under 5 U.S.C. § 7121(d) [of the Statute]." Id. at 11-12, 14.

      [ v62 p349 ] Accordingly, the Arbitrator concluded that the grievance was procedurally and substantively non-arbitrable.

III.      Positions of the Parties

A.     Agency's Exception

      The Agency states that "[it] agrees with the Arbitrator's factual assessment" that the grievant "did not express a genuine claim of discrimination[.]" Exception at 7, 2. However, according to the Agency, the award is deficient to the extent that it concludes that an arbitrator has jurisdiction over denial of an accretion-of-duties promotion due to discrimination. The Agency contends that the Arbitrator's determination that the exclusion in 5 U.S.C. § 7121(c) does not apply when a grievant elects to file a grievance based on discrimination is contrary to law, rule or regulation. Id. at 8. The Agency requests that the Authority set aside "the portion of the award finding that, under the negotiated grievance procedure, an employee may file a discrimination-based grievance concerning the classification of a position[.]" Id. at 9.

B.     Union's Opposition

      The Union asserts that the Agency's exception should be dismissed. The Union contends that the Agency concedes that the Arbitrator determined that the grievance was not procedurally or substantively arbitrable and that the Agency's exception concerns mere "dicta in the decision." Opposition at 2. The Union asserts that such dicta concerns a matter that "might occur in the future" and as such does not concern a matter that should be addressed by the Authority because, under § 2429.10 of the Authority's Regulations, such a decision would constitute an "advisory opinion." [n*]  Id.

      The Union further asserts that, if the Authority does consider the merits, then it should rule against the Agency because the Statute "specifically provides for special handling of discrimination cases which overrides the bar to filing classification grievances that do not concern discrimination." Id. at 5.

IV.      Analysis and Conclusions

      The Authority has stated that an opinion as to matters that might occur in the future constitutes an advisory opinion under 5 C.F.R. § 2429.10. AFGE, Council 215, 60 FLRA 461, 464 (2004) (citing AFGE, Local 1864, 45 FLRA 691, 694-95- (1992) (Local 1864)).

      In this case, the issue before the Arbitrator was whether the grievance was procedurally and substantively arbitrable. The Arbitrator found that the grievance was not procedurally or substantively arbitrable and, further, that the grievance did not state a legitimate claim of discrimination. The Agency's exception does not challenge the Arbitrator's arbitrability determination or her finding that the grievant "did not state a `legitimate' claim of discrimination." Exception at 2. Rather, the "basis for the Agency's [e]xception . . . concerns the [Arbitrator's] legal analysis which indicates that, had the [g]rievant made a credible claim of discrimination, his grievance over the denial of an accretion promotion would have been substantively arbitrable." Id. at 7 (emphasis in exception).

      The Agency does not challenge the Arbitrator's resolution of the issue before her, but instead challenges a hypothetical future event. Therefore, the Agency's exception se