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The decision of the Authority follows:
37 FLRA No. 88
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 19, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator James F. Doherty 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 filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance which asserted that the grievant was improperly denied a monetary performance award. The Union contends that the Arbitrator's award is deficient because the Arbitrator misapplied Agency regulations and misinterpreted the parties' collective bargaining agreement.
For the reasons stated below, we will remand the award to the parties to have them obtain a clarification of the award from the Arbitrator.
II. Background and Arbitrator's Award
In August 1988, the grievant received an overall performance rating for the period of June 1987 through July 1988 of "Highly Successful." Award at 2. The grievant appealed his rating to the Performance Rating Review Panel and his rating was subsequently raised to "Outstanding." Id. Following an inquiry by the grievant "as to the amount of his cash award[,]" the grievant was informed that he had not been recommended for a monetary performance award. Id. The Union filed a grievance over the Agency's failure to recommend the grievant for a cash award. The grievance was not resolved and was submitted to arbitration.
The Arbitrator first ruled on two procedural issues and found that the grievance was timely filed and that the Union was not precluded from arbitration because of a 6-month delay in setting the arbitration date. Next, the Arbitrator considered the issue of whether the grievant was "improperly denied a monetary award under the provisions of the negotiated agreement[.]" Id. at 1.
The Arbitrator stated that "there [was] a threshold question as to whether the grievance [was] of the type covered under the [parties'] collective bargaining agreement." Award at 7. He concluded that the grievance was not covered. The Arbitrator stated that Article X of the parties' agreement "excludes from the contractual definition and enumeration of grievances 'employee performance appraisal' complaints or appeals." Id.
The Arbitrator also stated that Article XVIII, section 1 provides that "[b]argaining unit employee's performance will be appraised in accordance with the requirements of Section 203[,] Title II of the Civil Service Reform Act of 197[,] and DMA[I]NST. 1434.1 [Defense Mapping Agency Instruction 1434.1]." Id., quoting the parties' agreement. The Arbitrator noted that DMAINST 1434.1 had been "supplanted" by DMAM 1434.3 (Defense Mapping Agency Performance Management Systems Manual 1434.3), which provides in Chapter 3, paragraph 2.g that "[t]he failure of DMA to pay a performance award may not be appealed/grieved." Id.
The Arbitrator found that "[t]hese provisions read together are clear and unambiguous." Id. He stated that the Union produced a number of documents to clarify its position, and determined that "[n]one of these documents contain language which directly or indirectly removes the barrier to the contractual grievance procedure." Id. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator "ignored or misapplied existing regulations when deciding that the [U]nion griev[a]nce . . . had no merit." Exceptions at 1. The Union states that the Arbitrator "used [DMAM 1434.3] as the main basis for his decision." Id. The Union argues that DMAINST 1434.1(*) was in effect before DMAM 1434.3 was published in 1986. The Union states that DMAINST 1434.1 "contained no bar to grievance over this issue." Id. Further, the Union contends that: (1) the parties were in negotiations over the provision in DMAM 1434.3 barring grievances over awards; (2) the Union objected to this provision; and (3) the provision "has never been implemented at [the Agency] and is not presently in effect[.]" The Union asserts that the Arbitrator's reliance on DMAM 1434.3 "serves as the central justification for his decision" and "constitutes grevious [sic] and harmful error[.]" Id.
The Union also contends that the Arbitrator "base[d] his decision [to deny the grievance] in part on a misinterpretation of the negotiated agreement which bars contested performance appraisals from the grievance process." Id., referencing Article X of the parties' agreement. The Union argues that "[n]othing in Article X, Article XVIII or Article XIX (Incentive Award Program) specifically bars a grievance over this issue." Id.
B. Agency's Opposition
The Agency argues that the Union provided no evidence to support its claim that DMAM 1434.3, which bars grievances over performance awards, was never implemented. The Agency asserts that "Union Exhibit 10 shows that on 28 June 1988, [the Union and the Agency] agreed to language . . . that '. . . Employee awards will be processed in accordance with Chapter 3 of DMAM 1434.3 [dated] 25 November 1986.'" Opposition at 1 (referencing Enclosure 1 of Opposition). The Agency claims that DMAINST 1434.1, the superseded regulation relied on by the Union, "was not submitted as evidence at the hearing, nor was it referenced in the Union's post-hearing brief." Id. Further, the Agency claims that "the [A]gency administrative grievance procedures in place at the [time of the grievance] and still in place do not cover receipt of or failure to receive a performance award." Id.
The Agency asserts that the Union's contention that "the Arbitrator erred in finding that the negotiated grievance procedure excludes matters of monetary award related to outstanding performance ratings" is "totally without merit." Id. The Agency contends that the Union's exceptions constitute "nothing more than the Union's disagreement with the reasoning and conclusions of the [A]rbitrator" and that the Union "fails to demonstrate any requirement in law, rule, regulation, or the negotiated agreement mandating a monetary award for outstanding performance ratings." Id.
IV. Analysis and Conclusions
Section 7116(a)(7) of the Statute provides that an agency may not "enforce any rule or regulation (other than a rule or regulation implementing [5 U.S.C. § 2302]) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed[.]" See 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, 193 (1990); U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168, 1174 (1988). However, nothing precludes the parties from agreeing to allow subsequently issued regulations to override a preexisting collective bargaining agreement.
It is undisputed that DMAM 1434.3 is an Agency regulation that was issued after the parties' collective bargaining agreement became effective, and that the Arbitrator relied on DMAM 1434.3 in rendering his award in this case. However, as noted above, the Agency and the Union are in dispute as to whether DMAM 1434.3 applies in this case. The Arbitrator found that DMAINST 1434.1 "ha[d] been supplanted by [DMAM] 1434.3." Award at 7. It is unclear whether the Arbitrator's statement is intended to constitute a finding that the parties had agreed that DMAM 1434.3 overrides their preexisting collective bargaining agreement or whether the Arbitrator's statement does not address that issue.
In order to provide a record on which to determine whether the award is deficient under the Statute, the award must be remanded to the parties to have them obtain a clarification from the Arbitrator. See Department of the Army, 6th Infantry Division (Light), Fort Richardson, Alaska and American Federation of Government Employees, Local 1834, Fort Wainwright, Alaska, 35 FLRA 42, 46 (1990). We will remand the award to the parties to request the Arbitrator to clarify his award to determine whether the parties had agreed that DMAM 1434.3 overrides their preexisting collective bargaining agreement and to resolve the grievance accordingly. If the Arbitrator finds that the parties had agreed that DMAM 1434.3 overrides their preexisting collective bargaining agreement, DMAM 1434.3 may be considered by the Arbitrator in the resolution of the grievance. If the Arbitrator finds that the parties did not agree that DMAM 1434.3 overrides their preexisting collective bargaining agreement, DMAM 1434.3 may not be considered by the Arbitrator in the resolution of the grievance.
In view of our decision, we do not address the Union's contention that the Arbitrator misinterpreted the parties' collective bargaining agreement.
Pursuant to section 2425.4 of the Authority's Rules and Regulations, the Arbitrator's award is remanded to the parties. The parties are directed to resubmit the award to the Arbitrator to obtain a clarification of the award. The Arbitrator should clarify his award to determine whether the parties had agreed that DMAM 1434.3 overrides their preexisting collective bargaining agreement and to resolve the grievance accordingly.
On receipt of the award, as clarified, either party may timely file with the Authority exceptions to that award.
(If blank, the decision does not have footnotes.)
*/ In its exceptions, the Union inadvertently refers to the regulation as DMAM 1434.1 instead of DMAINST 1434.1.