American Federation of Government Employees, Local 1122 (Union) and Social Security Administration, Western Program Service Center, Richmond, California (Agency)

[ v58 p525 ]

58 FLRA No. 130

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1122
(Union)

and

SOCIAL SECURITY ADMINISTRATION
WESTERN PROGRAM SERVICE CENTER
RICHMOND, CALIFORNIA
(Agency)

0-AR-3574

_____

DECISION

May 12, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator David C. Nevins filed by the Union under § 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 Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the grievance was untimely filed under the terms of the parties' collective bargaining agreement and, therefore, dismissed it. For the reasons that follow, we deny the exceptions.

II.     Background and Arbitrator's Decision

      The grievant was initially hired on September 20, 1999, as a contract representative--technical support technician. His work performance was found unacceptable by his supervisor and he was notified that he would be terminated during his probationary period in a letter dated September 6, 2000, which the grievant received on or about September 11, 2000. The grievant telephoned and spoke to his supervisor, who explained that he was being terminated during his probationary period for poor performance unless he accepted a reassignment to a lower level position in the mail unit. The grievant faxed his acceptance of the offer to his supervisor on September 11, 2000. Unbeknownst to the grievant, he [ v58 p526 ] had been downgraded to the mail unit position effective September 10, 2000, the start of a new pay period.

      After being on sick leave, the grievant returned to work on October 2, and on October 12, 2000, filed a grievance protesting the downgrade. When the grievance was not resolved, it was submitted to arbitration. The parties did not agree on the issues to submit to the Arbitrator, and he did not frame the issues himself. Instead, the Arbitrator recounted all of the issues raised by the parties.

      The Agency submitted the following issues:

1.     Was the grievance filed timely per the parties' labor agreement; if not, what shall be the remedy?
2.     Was the demotion of the grievant . . . voluntary; if not, what shall be the remedy?

      The Union submitted the following issues:

1.     Was the [Agency's] decision to terminate the grievant . . . from his position of Technical Support Technician GS-6 in accordance with the National Agreement between the Union and [Agency]; if not, what should the remedy be?
2.     Did the grievant . . . get demoted from Technical Support Technician GS-6 to Mail Clerk GS-4 voluntarily or involuntarily; if involuntarily, what should the remedy be?
3.     Did the [Agency] appraise the grievant's job performance as a Technical Support Technician in accordance with the National Agreement between the Union and [Agency]; if not, what should the remedy be?
4.     Did the [Agency] violate any of the contract articles and federal laws and regulations mentioned in the grievance; if so, what should the remedy be?

See Award at 1-2.

      The Arbitrator examined whether the grievance was timely filed and arbitrable. The parties' agreement requires that grievances be filed within 15 days. The Arbitrator found that the grievant knew of the downgrade by September 11, and thus, the October 20 grievance was untimely filed. The Arbitrator concluded that the grievance must be dismissed.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the grievance was timely filed. According to the Union, the Agency failed to notify the grievant that he could have grieved the proposed termination of his employment during his probationary period. The Union asserts that the Agency informed the grievant that he could appeal the termination of his probationary employment to the Merit Systems Protection Board, but did not inform him that he could file a grievance. Therefore, the Union contends that the grievant did not file his grievance earlier because of "illegal misinformation" on the part of the Agency. See Exceptions at 5.

      The Union also argues that the Agency accepted the grievance on the merits at Steps 1, 2, and 3 of the grievance procedure and did not declare it non-grievable or non-arbitrable then. See Exceptions at 3.

      The Union contends that the Agency was required to inform the grievant that he could file a grievance, but failed to do so. The Union relies on 5 C.F.R. § 1201.21. [n1]  The Union asserts that in failing to notify the grievant that he could have filed a grievance, the Agency created confusion, and ultimately caused the grievant's delayed filing of the grievance.

      The Union also claims that the grievant was not a probationary employee, because he had served 1 year. The Union asserts that the grievant should not have been demoted until October 6, after he had served the first year of employment, the probationary period. Moreover, the Union contends that the Agency should have given the grievant a 30-day notice of downgrade/reassignment. The Union further asserts that the Arbitrator is avoiding the issue, and refusing to address the merits of the case.

      The Union relies on 5 C.F.R. § 315.802 and 315.804 which define when a probationary period ends. The Union cites a portion of 5&nbs