39:1045(88)AR - - AFGE Local 2145 and VA Medical Center, Richmond, Virginia - - 1991 FLRAdec AR - - v39 p1045

[ v39 p1045 ]
The decision of the Authority follows:

39 FLRA No. 88




LOCAL 2145









March 6, 1991

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 Alfred Avins filed by 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 also filed an opposition to the Union's exception.

A grievance was filed over the Agency's failure to provide the grievant with a career-ladder promotion. The Arbitrator denied the grievance.

For the following reasons, we conclude that the Agency's exception was not timely filed. We conclude also that the award is deficient as contrary to law and we will remand the matter to the parties for resubmission to arbitration.

II. Background and Arbitrator's Award

The grievant, a GS-5 dietetic technician, filed a grievance over the Agency's failure to provide the grievant with a career-ladder promotion to a GS-6 dietetic technician position. When the grievance was not resolved, it was submitted to arbitration.

The Arbitrator noted that Article 34, Section 17 of the parties' collective bargaining agreement provides the following with respect to career-ladder promotions:

Promotion to the next higher grade depends on: 1. The selectee's demonstration of the ability to perform the duties of the next higher grade to the satisfaction of the supervisor; . . . .

Award at 1. The Arbitrator interpreted the portion of the provision referring to the satisfaction of the supervisor as requiring any dissatisfaction to be "well-founded." Id.

The Agency argued before the Arbitrator that there were two reasons for failing to promote the grievant: (1) the grievant made more errors in her work than did other dietetic technicians, and (2) the grievant had not demonstrated the ability to perform at the GS-6 level. The Arbitrator rejected both of the Agency's arguments. The Arbitrator stated that the Agency failed to substantiate its assertions, that its arguments were "factually weak[,]" and that, in conclusion, the Agency had failed to prove to the Arbitrator's satisfaction that the quality of the grievant's work differed from that of the other GS-6 dietetic technicians.

Nevertheless, the Arbitrator denied the grievance. The Arbitrator concluded that, consistent with the court's decision in Horner v. Bell, 825 F.2d 382 (Fed. Cir. 1987) (Bell), he was not authorized to "substitute [his] opinion about [the] grievant's promotion potential for that of her supervisors." Award at 5. Accordingly, as his award, the Arbitrator stated:

Because of the legal barriers set out above, the grievance must be denied. Should I be mistaken about the law, grievant has appellate remedies by which my opinion may be corrected, free from any unfavorable factual determinations.


III. The Positions of the Parties

A. The Union's Exception

The Union argues that the award is deficient because Bell does not apply in this case. The Union asserts, in this regard, that Bell does not apply because (1) Bell involved a demotion and this case does not; and (2) Bell involved the exercise of a management right under section 7106 of the Statute and, consistent with Authority precedent, the decision to grant or deny a career-ladder promotion does not involve the exercise of a management right. The Union requests the Authority to set aside the portion of the award that relies on Bell and remand the dispute to the Arbitrator for reconsideration.

B. The Agency's Exception and Opposition

In its opposition, the Agency argues that although Bell addressed a grievant's demotion, the portion of Bell addressing arbitral authority to determine a grievant's qualifications for a position applies here. The Agency relies also on the Authority's decision in Mare Island Naval Shipyard and International Federation of Professional and Technician Engineers, Local 11, AFL-CIO-CLC, 23 FLRA 259 (1986) (Mare Island), to support its argument that "an arbitrator may not conduct an independent evaluation of an employee's performance . . . ." Opposition at 1-2. The Agency argues, in this regard, that as the parties' agreement requires an employee to demonstrate the ability to perform at the next higher grade in a career ladder to the satisfaction of the employee's supervisor, any arbitral determination that the grievant should be promoted would constitute the improper substitution of the arbitrator's judgment for that of the supervisor.

The Agency states also that it excepts to the Arbitrator's rejection of its two asserted reasons for failing to promote the grievant. According to the Agency, it "articulated by a preponderance of the evidence a legitimate and reasonable basis for its decision not to promote the employee." Id. at 3.

IV. Preliminary Matter

Under section 7122(b) of the Statute, and section 2425.1(b) of the Authority's Rules and Regulations, the time limit for filing an exception to an arbitration award is 30 days beginning on the date the award is served on the filing party. If an award is served by mail, an additional 5 days are added to the filing period. 5 C.F.R. º 2429.22.

In this case, the Union timely filed its exception to the award and the Agency timely filed an opposition to that exception. As noted previously, the Agency included in its opposition an exception to a portion of the Arbitrator's award. The Agency's exception was not filed within the time period applicable to exceptions, however. Accordingly, it will be dismissed. See U.S. Department of the Army, Fort Campbell, Kentucky and American Federation of Government Employees, Loc