U.S. Department of the Army, the Adjutant General, Missouri National Guard, Bridgeton, Missouri (Agency) and Association of Civilian Technicians, Show-Me Air Chapter No. 93 (Union)
[ v56 p1104 ]
56 FLRA No. 196
U.S. DEPARTMENT OF THE ARMY
THE ADJUTANT GENERAL
MISSOURI NATIONAL GUARD
ASSOCIATION OF CIVILIAN TECHNICIANS
SHOW-ME AIR CHAPTER NO. 93
February 23, 2001
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.
Decision by Member Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John M. Creger filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7101 et seq., and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained that part of the grievance alleging that the Agency was not authorized to use adverse action procedures under Technical Personnel Regulation (TPR) 752 to suspend the grievant for five days. The underlying merits of the adverse action taken by the Agency against the grievant were not at issue in this arbitration proceeding, and the Arbitrator expressly so noted. See Award at 3, 12. The Arbitrator then denied that part of the grievance alleging that a performance evaluation of the grievant was made in retaliation for the filing of the grievance.
For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant, a Civilian Technician Technical Sergeant in the Missouri Air National Guard, and another employee reinstalled a wheel brake assembly on an F-15 aircraft. The other employee incorrectly installed the brake assembly, but the grievant signed a form indicating that the brake assembly had been correctly installed. Her supervisor, a Master Sergeant, also signed the form. A brake installation is considered a "Red X" item that affects whether the equipment is safe and fit for flight.
The dispute arose when the Agency used adverse action procedures to suspend the grievant for five days, for failing to discover the incorrect brake assembly reinstallation and for erroneously signing the form. TPR 752, Chapter 2 is entitled Adverse Action. Under that chapter, permissible adverse actions are: (1) suspensions; (2) changes to lower grade; and (3) removals. TPR 752, Chapter 2, Section 2-1 states:
2-1. TYPES OF ADVERSE ACTION
a. There are only three types of adverse action which may be taken against a technician: (1) suspension (Includes indefinite suspension); (2) change to lower grade, and (3) removal. The procedures and protections provided in this chapter must be followed when management initiates any one or combination of these three adverse actions.
b. The following actions do not constitute an adverse action, and the procedures and protection provided in this chapter will not be applied to these actions:
. . . .
(2) Actions taken for performance reasons.
Award at 6, citing TPR 752 (emphasis in award).
Before the Arbitrator, the Agency argued that there is a distinction between "performance" and "conduct," and that the basis for this five-day suspension represented "conduct" rather than "performance." The Union argued that the grievant's actions on December 7 were "performance" and thus were exempt from the adverse action regulations. [n1] When the grievance was not resolved, it was submitted to arbitration. [ v56 p1105 ]
B. Arbitrator's Award
The parties submitted the following issues to the Arbitrator:
1. Were the issues raised by the grievance arbitrable issues under the terms of the agreement between the parties?
2. Were the Grievant's actions on December 7, 1988, "conduct" that would support Adverse Action against her pursuant to TPR 752, or were they "performance," exempted from Adverse Action by TPR 752b.(2)?
3. Was Grievant's Performance Evaluation for the period of time between July 1, 1998 and December 1, 1998, made in retaliation for the filing of the grievance in opposition to the Adverse Action commenced against the Grievant by the Employer?
Award at 4.
As to the arbitrability issue, the Arbitrator noted that the terms "performance" and "conduct" are not defined in TPR 752. The Arbitrator set forth Section 5.1 of the parties' agreement that defines specific types of grievances that may be resolved under the grievance procedure. According to the Arbitrator, such grievances include the following:
a. A grievance means [a] complaint:
. . . .
(3) By any Technician, the Association or the Employer concerning;
. . . .
(b) Any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.
Id. at 7, quoting Section 5.1 of parties' agreement.
The Arbitrator found that the quoted agreement provision "is sufficiently broad to make arbitrable matters associated with the interpretation of TPR 752, including the 'conduct' v. 'performance' issue." Id.
On the merits, the Arbitrator stated that the issue before him was "whether such actions were 'conduct' and could be the subject of Adverse Action under TPR 752, or whether they represented 'performance,' and as such, fell within the exclusionary language of TPR Chapter 2, Section b(2)." Id.
The Arbitrator consulted several dictionaries to examine the meaning of the terms "conduct" and "performance," in the absence of any other evidence from the Agency. The Arbitrator found that the dictionary definitions "strongly favor" the Union's position. Id. at 9. The Arbitrator then turned to military sources to find whether the terms had a different meaning within military law. The Arbitrator consulted the Uniform Code of Military Justice (UCMJ) and found that the meaning of the term "conduct" as used in the UCMJ does not conflict with the dictionary definitions of the term. See id. at 10.
The Arbitrator also reviewed the Table of Penalties in TPR 752 and the list of 22 offenses contained therein. The Arbitrator found that all of the offenses listed, with the exception of the second one, were well within the dictionary definitions of "conduct." [n2] The Arbitrator then concluded that "[i]n the absence of evidence clarifying the intent of the language used to describe Offense 2, I am unwilling to assume that it includes the actions of the [g]rievant on December 7, 1998." Id. at 11.
Finally, the Arbitrator considered the Agency's "Performance Appraisal Form" that rates the job efficiency of civilian technicians. The grievant's performance appraisal form for the period in question was introduced as evidence at the arbitration hearing. The Arbitrator found from the grievant's appraisal form that the Agency considered the grievant's actions as performance. The Arbitrator concluded that no definitions of the terms "conduct" and "performance" supported the Agency's contention that the grievant's actions on December 7, 1998, represented "conduct" rather than "performance."
On the issue of whether the Agency's appraisal of the grievant constituted retaliation, the Arbitrator found that the matter was not arbitrable under the parties' agreement. Specifically, Article V, Section 5.1b of the [ v56 p1106 ] parties' agreement provides that the procedure does not cover any of the following matters:
(9) Matters for which there are regulatory appeal procedures provided. (i.e. performance appraisal appeals.)
Id. at 13, quoting from parties' agreement.
III. Preliminary Issue
A. Positions of the Parties
1. Union's Position
According to the Union, the Agency has raised three issues in its exceptions that were not presented to the Arbitrator. The Union contends that at no time during the hearing or in the Agency's post-hearing brief did the Agency claim that § 7106(a)(2) of the Statute, or 32 U.S.C. § 709, or the collective bargaining agreement preclude interpretation, application, or enforcement of TPR 752 by the Arbitrator. The Union argues that under § 2429.5 of the Authority's Regulations, the Agency may not raise these issues for the first time in its exceptions to the Arbitrator's award presented to the Authority.
2. Agency's Position
The Agency did not specifically address this contention. However, the Agency noted that the grievant's appropriate appeal procedures were included in the response to the grievance and these appeal procedures somehow "eluded" the Arbitrator. Exceptions at 4.
B. Analysis and Conclusion
Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator. See, e.g., United States Dep't of the Interior, Nat'l Park Svc., Golden Gate Nat'l Recreation Area, San Francisco, Ca., 55 FLRA 193, 195 (1999). There is no indication in the record that the Agency argued to the Arbitrator, as it has in its exceptions, that the grievance is not arbitrable because the grievant is covered by the Technicians Act of 1968, 32 U.S.C. § 709. As the issue relates to the arbitrability of the grievance, it clearly could, and should, have been presented to the Arbitrator. Accordingly, we will not consider the Agency's argument based on 32 U.S.C. § 709.
We note that the Authority has held that its subject-matter jurisdiction is an issue that may be raised at any stage of the Authority's proceedings. See AFGE, Council of Prison Locals, Local 171, 52 FLRA 1484, 1489 n.7 (1997). However, in this case, the Agency is not questioning the jurisdiction of the Authority to issue a decision resolving its exception. Instead, based on 32 U.S.C. § 709, the Agency is questioning for the first time in its exception the jurisdiction of the Arbitrator to resolve the grievance. Again, because the Agency did not raise 32 U.S.C. § 709 to the Arbitrator, we cannot consider it here. See 5 C.F.R. § 2429.5.
The Agency also raises for the first time its contention that management's right to discipline under § 7106(a)(2) of the Statute includes the right to determine whether to take action against an employee under "conduct" or "performance" procedures. There is no indication in the record that the Agency presented this argument to the Arbitrator. Because the issue was not raised before the Arbitrator, we are barred from considering it by § 2429.5.
Based on the Arbitrator's decision, however, we conclude that the Agency presented arguments based on the parties' collective bargaining agreement to the Arbitrator. The Arbitrator specifically noted that one of the matters before him was whether the issues raised by the grievance were arbitrable under the terms of the parties' agreement. Accordingly, we will consider the Agency's essence argument based on the parties' agreement as this argument is not barred by § 2429.5.
IV. Positions of the Parties
A. Agency's Exceptions
According to the Agency, the Authority has found that if an agreement specifically excludes a matter from arbitration, an award that violates the agreement will be set aside. In this case, the Agency notes that both performance and adverse actions are excluded from the scope of the grievance procedure in the parties' agreement. Therefore, the Agency contends that the award should be set aside because the award fails to draw its essence from the parties' agreement.
B. Union's Opposition
The Union asserts that the award does not fail to draw its essence from the parties' agreement. The Union contends that the fact that the Agency argued that its actions fall "within a category that allows no appeal does not mean that the correctness" of the Agency's ch