[ v51 p1567 ]
The decision of the Authority follows:
51 FLRA No. 128
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF EEOC LOCALS NO. 216
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
July 19, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Gladys Gershenfeld 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that a grievance regarding the Agency's alleged denial of career ladder promotions was premature and not arbitrable.
For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Arbitrator's Award
The grievants are Investigators whose initial career ladder progressed from GS-7 through GS-11. After the Agency assumed responsibility for administration of the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991, the Agency determined that sufficient complex work existed to support a career ladder to the GS-12 level. On December 22, 1992, the Agency wrote the Union regarding the upgrade in positions, and sent the Union for its review a draft checklist that Agency management had developed for supervisors to use when considering Investigators for non-competitive promotion to the GS-12 level. The Union objected to the use of the checklist as an addition to the standards included in Article 17 of the parties' agreement.(*)
On February 3 and 4, 1993, seven Investigators requested non-competitive promotions to the GS-12 level. On February 8, they received similar replies from the Agency stating that promotion actions had been "stalled until the Union concerns can be resolved" regarding use of the checklist. Award at 3.
On February 24 and 25, the employees filed grievances claiming that the Agency had violated Article 17 because it had denied their promotions and did not demonstrate that they failed to meet the agreement's requirements. During the processing of the grievances the Agency asserted that the grievances were premature because the promotion requests preceded the conclusion of impact and implementation negotiations with the Union on these non-competitive promotions.
The Union submitted the matter to arbitration. The parties could not agree on the issues to submit to the Arbitrator. The Arbitrator considered only the arbitrability of the grievances and, as relevant here, framed the issue as whether the grievances were premature.
Before the Arbitrator, the Agency argued that the grievances were premature because it had not denied the requested promotions, and because the grievances were filed before evaluations of the employees' records were conducted. The Union asserted that the grievances would have been prematurely filed only if they had been filed prior to the denial of the promotions. The Union claimed that the employees were informed that they would not be promoted to GS-12 before they filed their grievances.
The Arbitrator found that the only evidence of a reply to the grievants' requests for promotion was the Agency's memorandum advising each grievant that the process had been "stalled" until the Union's concerns could be resolved. Id. at 8. The Arbitrator determined that the memorandum "convey[ed] a delay but not a denial." Id. The Arbitrator concluded that the delay was caused by the parties' fulfillment of labor-management responsibilities. The Arbitrator found that in view of the "lack of denial" and the "nature of the delay," the grievances were premature and, therefore, not arbitrable. Id.
A. Union's Contentions
The Union contends that the award does not draw its essence from the parties' agreement and that it is contrary to section 7106(a)(2)(C) of the Statute.
B. Agency's Opposition
The Agency contends that the award draws its essence from the agreement and that its actions were consistent with law.
IV. Analysis and Conclusions
The award is based on the Arbitrator's determination of the procedural arbitrability of the grievances under the parties' collective bargaining agreement. An arbitrator's determination of the procedural arbitrability of a grievance under the parties' agreement is not subject to direct challenge. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185 (1995). Such a determination may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. Id. at 186.
The Union's contention that the award does not draw its essence from the parties' agreement constitutes a challenge to the Arbitrator's determination of the procedural arbitrability of the grievances under the agreement. Therefore, this contention does not constitute a basis for finding that the award is deficient under section 7122(a) of the Statute. For example, id., citing U.S. Department of the Army, Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 1113, 1115-16 (1991).
The Union's additional argument that the award violates section 7106(a)(2)(C) of the Statute also does not establish that the award is deficient. The Arbitrator determined only that the grievance was not arbitrable under the parties' negotiated agreement and did not reach the substantive issue of whether the grievants were entitled to career ladder promotions. As such, the award does not concern section 7106(a)(2)(C) of the Statute. Accordingly, we deny the exception.
The Union's exceptions are denied.
Article 17, Section 17.02 of the agreement states:
In order to effect a career-ladder promotion for an employee, the supervisor must certify that:
(a) the employee was initially selected through merit procedures or a valid exception to or exclusion from merit procedures;
(b) the employee has a "fully successful" or higher rating of record;
(c) the employee has not received less than a "fully successful" rating on a critical element that is also critical to the performance at the next higher grade;
(d) the employee has demonstrated the ability to perform continuously at the next higher level;
(e) the employee has met all time-in-grade requirements; and
(f) higher grade level work is available and there is a continuing need for personnel at the grade level, in accordance with sound principles of position management.
(If blank, the decision does not have footnotes.)
*/ A copy of the standards contained in Article 17 is set forth in the Appendix to this decision.