American Federation of Government Employees, Local 3134 (Union) and United States Small Business Administration, Region 2 (Agency)

[ v56 p1055 ]

56 FLRA No. 188

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3134
(Union)

and

UNITED STATES SMALL BUSINESS
ADMINISTRATION, REGION 2
(Agency)

0-AR-3353

_____

DECISION

January 26, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joan Ilivicky 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 sustained a grievance alleging in relevant part that the Agency failed to promote the grievant in a timely fashion to the GS-9 level in violation of the parties' collective bargaining agreement. The Arbitrator found that the grievant's promotion to a GS-9 should have been effectuated approximately four months earlier and ordered that the grievant be made whole for the difference in salary and benefits between the GS-7 and GS-9 levels for those four months, with interest. The Union excepts on the grounds that the award is incomplete and contrary to law since the Arbitrator failed to address and remedy the grievant's claims that the initial delay in promoting grievant to GS-9 resulted in delays in subsequent promotions to GS-11 and GS-12.

      For the following reasons, we deny the Union's exceptions.

II.     Background and the Arbitrator's Award

      On May 26, 1996, the grievant, was selected for a Loan Assistant position with promotion potential to GS-9, which was "a bridge position designed to train an employee for entry into a career ladder" position. Award at 19. At the same time, the grievant was accepted into a six-month Professional Career Development Program (PCDP), "where she would receive training, secure the necessary skills and have an opportunity to progress to a career ladder position." Id. On July 30, 1996, the grievant received a copy of her Individual Development Program (IDP) Agreement, which contained the goals to be achieved by the grievant during the PCDP. Paragraph 36(c)(2) of the IDP requires that such agreements will be provided to trainees within 30 days.

      On November 22, 1996, the Union filed a grievance, that was later amended on March 13, 1997, which alleged that the Agency had failed to promote the grievant to the GS-9 level, in violation of Article 29, Section 2(m) of the Master Agreement. [n1]  Although the grievant was later promoted to the GS-9 level on April 13, 1997, attempts to settle the grievance were not successful and the grievance was submitted to arbitration.

      At the outset of her opinion, the Arbitrator stated that the following issues were framed by the parties:

(1)     Is the grievance filed by Local 3134, AFGE, on behalf of [the grievant] on November 22, 1996 arbitrable? If so,
(2)     Did the Agency violate the Master Agreement by delaying [the grievant's] promotion to a GS-9 target grade until April 13, 1997. If so, what shall be the remedy?

Id. at 3. The Arbitrator decided not to address the Union's claims that the grievant "be granted relief for subsequent delays allegedly suffered by [g]rievant in promotions from Grade 9 to Grade 11 and Grade 12, . . . [as a result of] the initial delay in her promotion to a GS-9 level." Id. at 22. In this respect, the Arbitrator explained that

These claims were first addressed at the commencement of the Hearing when the issues to be determined by the Arbitrator were discussed and agreed upon. Discussions concerning these claims did not result in the framing of an issue mutually satisfactory to the parties. Consequently, the Arbitrator is without authority to rule on these claims. [ v56 p1056 ]

Id. at 23.

      The Arbitrator found that the grievance was arbitrable. Id. at 11. With respect to the timing of the grievant's promotion solely to the GS-9 level, the Arbitrator found that the Agency violated the terms of the collective bargaining agreement by failing to accomplish the grievant's IDP Agreement within the required 30 day period. Id. at 20. In line with this finding, the Arbitrator concluded that the grievant shall be deemed to have completed the program on December 23, 1996, which would have been the completion date for the grievant's six month PCDP had the Agency completed the IDP Agreement in a timely fashion. The Arbitrator found that "[c]learly, [g]rievant suffered a loss as a result of a protracted training program, a delay in the completion of the training program and a delay in her promotion to the GS-9 target position." Id. As a remedy, the Arbitrator ordered that the grievant be made whole for the difference in salary and benefits between the GS-7 and GS-9 levels from the first day of the next pay period after December 23, 1996 through April 12, 1997, with interest.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union maintains that the award is deficient on the grounds that it is contrary to law and incomplete. The Union argues that "[o]nce the [A]rbitrator decided that the issue included the appropriate remedy, she had the authority to decide whether the [g]rievant . . . should have received back pay for her delayed promotions [to GS 11 and 12] resulting from the threshold contract violation[, and that] [t]he [A]rbitrator's conclusion [that she was without authority to rule on these claims] is not supported by law." Exceptions at 3, citing Pathmark Stores, Inc. v. Local 1199, 1999 WL 20896 (S.D.N.Y. January 19, 1999) and United States Dep't of the Treasury, IRS, Phila. Serv. Ctr., Phila., Pa., 41 FLRA 710, 724 (1991). In addition, the Union argues that "because the [A]rbitrator refused to consider an issue properly before her, i.e., the appropriate remedy for the Agency's contract violation,