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38:0022(4)AR - - Justice, Federal Correctional Institution, El Reno, OK and AFGE Local 171 - - 1990 FLRAdec AR - - v38 p22

[ v38 p22 ]
The decision of the Authority follows:

38 FLRA No. 4













November 7, 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 Barnett M. Goodstein filed on behalf of the Activity by the U.S. Department of Justice (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 Union did not file an opposition to the exceptions.

The grievant filed a grievance alleging that, since 1983, he improperly had been denied promotions based on the Agency's use of unpublished, non-merit criteria. The Arbitrator ruled that the grievance was grievable and arbitrable. He ruled also that the only issue to be determined on the merits was the "promotional passover . . . on February 22, 1989." Award at 10.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient.

II. Background and Arbitrator's Award

The grievant, a senior officer specialist, has been passed over for promotion since 1983. During a staff meeting called by the warden of the El Reno facility on February 22, 1989, the warden commented to the assembled staff members that "employees who stayed healthy were promoted sooner than others who may have taken sick leave." Award at 1. The warden stated also that the employees who had been promoted "had demonstrated their dependability by a healthy approach to their job, and the lack of absence due to sickness in 1988." Id. Following the staff meeting, the warden stated to the grievant that the grievant's "reliability was only fair." Id. The warden also denied having made dependability a criterion for promotion.

The grievant filed a grievance alleging discrimination by the warden based, in part, on the warden's alleged use of sick leave as a criterion for promotion. The grievant requested, as a remedy, "all back[]pay and promotions from October, 1983, from a GS[-]8 to a GS[-]11 in October 1987, with an intervening promotion in October, 1985." Id. at 2. When the grievance was not resolved, it was submitted to arbitration.

Before the Arbitrator, the parties agreed that, with respect to the award now before us, only the issue of arbitrability would be addressed. The merits of the grievance were to be "addressed only in the event the [g]rievance [was] found to be arbitrable, and then in a separate award at a later date." Id. (*)

The Arbitrator framed the issue before him as:

Is the non-selection of the grievant from a properly rated and ranked group of candidates grievable under applicable statute, regulation, and/or the negotiated agreement? If so, does the arbitrator have the authority under the master labor agreement (September 1, 1988--August 31, 1991) to hear the grievance on its merits retroactive to October, 1983?


The Arbitrator noted the Activity's argument that its right under section 7106 of the Statute to make selections for appointments encompassed the right to make selections from among properly ranked and certified candidates. The Arbitrator also noted, however, that management's rights under section 7106 must be observed in accordance with procedures and appropriate arrangements negotiated in accordance with section 7106(b)(2) and (3). The Arbitrator found, in this regard, that the parties had negotiated a merit promotion plan, as well as provisions in their master agreement covering sick leave, and employee performance and ratings.

The Arbitrator found nothing in the various negotiated provisions which would enable a selecting official to consider an employee's use of sick leave in determining whether to promote the employee. According to the Arbitrator, a selecting official "may not violate the [S]tatute, negotiated agreement, or the negotiated Merit Promotion Plan in his discretionary selection of the successful candidate of candidates. This the Warden did in the February 22, 1989[,] selection." Id. at 5-6. In addition, the Arbitrator found that:

[I]f the selecting official does not follow proper promotion procedures--as in using some level of sick leave usage in the determination--then the unsuccessful candidate has the right to file a formal complaint, or [g]rievance . . . . This the [g]rievant has done, and in the opinion of this arbitrator, rightfully so.

Id. at 6-7.

The Arbitrator noted that, consistent with the parties' master agreement, grievances must be filed within 1 year of an alleged violation. The Arbitrator concluded, therefore, that "[t]he only grievance before this arbitrator, to be decided on the merits, is the promotional passover by the Warden on February 22, 1989." Id. at 10.

The Arbitrator provided the following as his award:

The non-selection of the [g]rievant at the time covered by this [g]rievance is grievable, and is arbitrable under current statutes, regulations and the negotiated Agreement. However, the authority of the arbitrator to rule on the [g]rievant's request for back[]pay, if any be awarded, is limited to the period from February 22, 1989, and not to any prior date.


III. The Agency's Exceptions

The Agency asserts that the award is deficient on three grounds. First, the Agency maintains that the parties agreed that the only issue to be decided by the Arbitrator was whether the grievance was arbitrable. The Agency asserts that, in view of the parties' agreement, the Arbitrator exceeded his authority by ruling that the warden had violated various provisions of the merit promotion plan and the parties' agreement. The Agency notes that it does not disagree with the Arbitrator's award that the grievance was arbitrable. Rather, the Agency requests that the award "be modified to strike the Arbitrator's substantive conclusions regarding the legality of selecting officials considering sick leave usage." Exceptions at 6.

Second, the Agency maintains that even if the Arbitrator did not exceed his authority, the award is deficient because, consistent with management's right to select, "a selecting official can select a particular candidate over another for any reason as long as that reason does not reflect a prohibited discriminatory motive." Id. at 8-9 (emphasis omitted). The Agency asserts that the parties' various negotiated provisions are not "controlling" on this point because "any provision which the Arbitrator relied upon for his ruling insofar as it rests upon contractual interpretation is contrary to law in that the provisions, as so interpreted, are illegal and null and void." Id. at 10. The Agency also asserts, in this regard, that the Arbitrator's contractual interpretations do not draw their essence from the parties' agreement.

Third, the Agency asserts that the award conflicts with Federal Personnel Manual, chapter 335, subchapter 1, section 1-6. The Agency provides no argument concerning this exception, however.

IV. Analysis and Conclusions

An arbitrator's award will be found deficient, as in excess of the arbitrator's authority, when the arbitrator resolves an issue that has not been submitted by the parties to the arbitrator. See, for example, General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123, 1128 (1990) (GSA) (award set aside where arbitrator exceeded his authority by resolving an issue which the parties had not submitted to him).

It is clear that the parties agreed that the Arbitrator was to resolve the arbitrability issue only and that the Arbitrator recognized that it was only the arbitrability issue that was before him. In fact, the issue, as framed by the Arbitrator, encompassed only the arbitrability issue. Moreover, the "AWARD OF THE ARBITRATOR" encompasses only that issue. Award at 10. In fact, in discussing the part of the issue relating to the time periods appropriately encompassed by the grievance, the Arbitrator stated that "[t]he question . . . appear[ed] to be the term of the retroactivity for which the [g]rievant is requesting a back-pay award, in the event the arbitrator finds in his favor on the merits of his [g]rievance." Id. at 9 (emphasis added). Likewise, the Arbitrator stated that his authority "to rule on the [g]rievant's request for back[]pay, if any be awarded, is limited to the period from February 22, 1989 . . . ." Id. at 10 (emphasis added).

It is apparent to us, from a reading of the award as a whole, that the Arbitrator has not decided the merits of the grievance. Although the Arbitrator discussed whether consideration of an employee's sick leave usage by a selecting official violates law or the parties' agreement, this discussion went in part to whether the matter was arbitrable, that is, whether issues were raised regarding the manner of selection that were cognizable under the grievance procedure. Accordingly, although we agree with the Agency that the Arbitrator was bound by the parties' agreement that he limit his decision to the arbitrability issue, we find no basis on which to conclude that the Arbitrator did not do so.

As the Arbitrator's award encompasses only the arbitrability issue, and as the Agency does not except to the Arbitrator's findings regarding arbitrability, the exceptions provide no basis for setting aside, or modifying, the award. Compare GSA at 1128. Instead, the exceptions constitute mere disagreement with the Arbitrator's reasoning in reaching his conclusion on the issue before him and do not demonstrate that the award is deficient. See, for example, Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 334 (1990).

Consistent with our determination that the Arbitrator did not resolve the merits of the grievance, the Agency is free, during any arbitral proceedings concerning the merits, to raise any appropriate issues, including the issues it has raised here concerning the consideration of sick leave usage by selecting officials.

V. Decision

The Agency's exceptions are denied.

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

*/ The parties stipulated that the grievant: (1) was properly rated and ranked for promotion, (2) was referred to the warden, as the selecting official, as a "best qualified" candidate during the period in question, and (3) was qualified to perform the work of a GS-8 correctional officer at the Activity since 1982. Id.