42:0674(44)AR - - Defense Mapping Agency, Hydrographic/Topographic Center, Washington, DC and AFGE Local 3407 - - 1991 FLRAdec AR - - v42 p674

[ v42 p674 ]
The decision of the Authority follows:

42 FLRA No. 44










LOCAL 3407



(37 FLRA 1066 (1990))


September 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award on remand 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 exception.

In his original award,(1) the Arbitrator denied a grievance claiming that the grievant was improperly denied a monetary performance award. The Union filed exceptions to the Arbitrator's award, and we concluded that we were unable to determine whether the award was deficient. Accordingly, in 37 FLRA 1066, we remanded the case to the parties for resubmission to the Arbitrator.

In his award on remand, the Arbitrator found that the parties had agreed to an Agency regulation precluding grievances over a failure to grant monetary performance awards. Accordingly, the Arbitrator reaffirmed his original denial of the grievance.

For the following reasons, we conclude that the Union fails to establish that the award is deficient and we will deny the exception.

II. Background and Initial Award

The dispute in this case arose when the Agency failed to recommend the grievant for a cash award based on his performance rating. A grievance was filed and, when the grievance was not resolved, it was submitted to arbitration on the issue of whether the Agency violated the parties' collective bargaining agreement by failing to recommend the grievant for an award.

On the "'threshold question as to whether the grievance [was] of the type covered under the [parties'] collective bargaining agreement[,]'" the Arbitrator concluded that the grievance was not covered by the agreement. 37 FLRA at 1067 (quoting from award; brackets in original). The Arbitrator noted that the parties' agreement provided that employee performance will be appraised in accordance with, among other things, Defense Mapping Agency Instruction (DMAINST) 1434.1. The Arbitrator also noted that DMAINST 1434.1 had been "'supplanted'" by Defense Mapping Agency Performance Systems Manual (DMAM) 1434.3, which provided, in pertinent part, that the Agency's failure "'to pay a performance award may not be appealed/grieved.'" Id. (quoting from award). Based on DMAM 1434.3, the Arbitrator denied the grievance.

III. The Decision in 37 FLRA 1066

The Union filed an exception to the initial award contending that the award was deficient because the Arbitrator improperly relied on DMAM 1434.3. The Union argued that DMAM 1434.3 did not bar the grievance because, among other things, the regulation had not been implemented.

In its opposition, the Agency argued that the parties agreed to incorporate DMAM 1434.3 in the collective bargaining agreement.

In 37 FLRA 1066, we noted that DMAM 1434.3 was issued after the effective date of the parties' agreement. We also noted that although section 7116(a)(7) of the Statute generally prevents agencies from enforcing a regulation that conflicts with a preexisting collective bargaining agreement, parties may agree to allow subsequently issued regulations to override such an agreement. As the Arbitrator had not expressly found that the parties agreed to allow DMAM 1434.3 to override the parties' agreement, we remanded 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." 37 FLRA at 1070.

IV. Arbitrator's Award on Remand

In his award on remand, the Arbitrator referenced three joint exhibits introduced at the original arbitration hearing and noted that in Joint Exhibit 3 (the Union president's response to the Agency's announcement of the implementation date of DMAM 1434.3), the president stated that: "'the implementation of the [Performance Management System] shall be in accordance with Section 4 of Article IV of the negotiated agreement.'" Award at 3 (quoting from Joint Exhibit 3). The Arbitrator found that Article IV, section 4 of the agreement "deals with employee and Union rights and responsibilities and is not germane to the issue in this case." Id.

The Arbitrator concluded that "[t]he documents are clear. There was a negotiation on [DMAM] 1434.3 followed by an agreement which was expressly referenced to the negotiated agreement between the parties. Section 1434.3 precludes the grievance in this case." Id. Accordingly, the Arbitrator again denied the grievance.

V. Positions of the Parties

A. The Union

The Union argues that the Arbitrator "misinterpreted, modified and/or ignored" the parties' agreement and evidence presented at the arbitration hearing. Exception at 1. In particular, the Union disputes the Arbitrator's finding that Article IV, section 4 of the parties' agreement was not relevant to the grievance.(2) The Union contends that Article IV, section 4 is relevant because it addresses the parties' obligations "to negotiate the changes to personnel policies, practices and working conditions . . . ." Id. at 3. The Union also contends that, under Article IV, section 4, "there is no agreement . . . until intervention of the FMCS is unsuccessful and the issues are referred to the FSIP." Id. According to the Union, the Agency's position prior to the original arbitration hearing was that "none of DMAM 1434.3 had been implemented." Id.

B. T