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The decision of the Authority follows:
39 FLRA No. 88
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
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, Local 2022, 37 FLRA 1102, 1104 (1990); U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 141-42 (1990).
V. Analysis and Conclusions
We agree with the Union that Bell does not apply in this case. Accordingly, we will set aside the portion of the award relying on Bell.
In Bell, the United States Court of Appeals reversed an arbitration award involving the demotion of an employee from a GS-10 position to a GS-5 position. As relevant here, the arbitrator determined in Bell that the affected employee's performance was unsatisfactory but, on the basis of a provision in the parties' agreement, directed the agency to reassign the employee to another position at the GS-10 level. The court held that an arbitrator could not modify a penalty imposed by an agency in a performance-based action under 5 U.S.C. º 4302. The court also held that the award was "based on an erroneous interpretation of the collective bargaining agreement . . . ." Bell, 825 F.2d at 385. The court noted that the applicable agreement provision provided only that a supervisor "may" propose to reassign an employee whose performance was unacceptable, and stated that the provision could not "fairly be read as requiring the agency" to effect such reassignment. Id. The court also stated, in this regard, that the arbitrator "was not justified in substituting his judgment for that of the agency regarding the grade level position and work that [the affected employee] could perform." Id. Finally, as relevant here, the court held that even if the agreement provision could be read as requiring a reassignment of the affected employee, that provision was not enforceable because it did not constitute either a negotiable procedure or an appropriate arrangement under section 7106(b) of the Statute.
As the Agency acknowledges, the case now before us does not involve a performance-based action under 5 U.S.C. º 4302 and is not one which otherwise would be within the jurisdiction of the U.S. Court of Appeals for the Federal Circuit. As such, the court's decision in Bell does not apply directly here. More importantly, however, the rationale used by the court in Bell does not apply here. We note two things.
First, as noted previously, the court held in Bell that the arbitrator's interpretation of the applicable collective bargaining agreement was erroneous. In this case, by contrast, we have no basis on which to disturb the Arbitrator's interpretation of the parties' agreement. That is, there is no contention that the award fails to draw its essence from the agreement and no other basis on which to find that the Arbitrator's interpretation of the agreement is irrational or implausible so as to be deficient on that basis. As such, the court's discussion of the disputed contractual provision, and arbitral authority thereunder, does not apply here.(1)
Second, there is no assertion, and no basis on which to conclude, that the portion of the parties' agreement in dispute here is not enforceable. Consistent with long-standing Authority precedent, agreement provisions addressing career-ladder promotions, similar to the one now before us, are enforceable. See, for example, U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 1568, 33 FLRA 308, 309 (1988) (Authority denied exceptions to an award enforcing agreement provision providing, in part, that a career-ladder promotion was conditioned on employee's "demonstration of the ability to perform the duties of the next higher grade to the satisfaction of his/her supervisor"). Accordingly, the court's conclusion that the disputed agreement provision in Bell was not enforceable is not applicable here.(2)
In sum, the Arbitrator's conclusion that he was constrained to deny the grievance based on Bell is inconsistent with law. As such, the award is deficient under section 7122(a) of the Statute. We will, therefore, grant the Union's exception and remand the dispute to the parties for resubmission to an arbitrator of their choice for resolution of the grievance in accordance with this decision.
The portion of the Arbitrator's award relying on Bell is set aside. The dispute is remanded to the parties for resubmission to arbitration in accordance with this decision.
(If blank, the decision does not have footnotes.)
1. As the court's discussion of arbitral authority under the disputed provision in Bell does not apply, we will not address it further. But see Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1161-62 (1988) (Authority rejected previous decisions that arbitrators were not authorized to substitute their judgments for those of management); Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635-36 (1988) (Authority held that agency's concern over arbitrators "substituting their judgment" provided no basis for precluding arbitrability of certain grievances).
2. We do not, in this regard, address the merits of the court's discussion of the enforceability of provisions in arbitration. But see Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990).