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58 FLRA No. 130
OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
WESTERN PROGRAM SERVICE CENTER
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 C.F.R. § 315.804(b) which states that "Probation ends when the employee completes his or her scheduled tour of duty on the day before the anniversary date of the employee's appointment." [ v58 p527 ] According to the Union, the grievant was hired as a Technical Support Technician effective September 20, 1999, and that he was to be terminated effective close of business on September 19, 2000. The Union argues that the grievant would have completed his one year of service under the terms of the letter, and that the Arbitrator "dodged these issues." Exceptions at 5. The Union contends that the grievant should not have been reassigned to the mail unit until after completion of his one year of service as a Technical Support Technician.
The Union further argues that the grievance was timely filed because it was filed within 30 days of the downgrade. The Union asserts that terminations and downgrades are adverse actions governed by 5 C.F.R. Parts 432 and 752, and related collective bargaining provisions, which provide time for the employee to respond to any such adverse action proposals.
The Union argues that the Agency coerced the grievant in the exercise of his rights, by failing to notify the grievant that he could file a grievance and forcing the employee to agree to take a position in the mail unit. The Union asserts that the Agency repudiated the parties' agreement when it contended that certain agreement provisions did not apply to probationary employees.
Finally, the Union contends that both parties raised an issue regarding whether the demotion of the grievant was voluntary and if not, what should the remedy be. The Union argues that because the issue was brought up by both parties, the Arbitrator was "obliged to resolve it and not dodge it." Exceptions at 10. The Union asserts that the Arbitrator exceeded his authority by refusing to resolve the grievance over the grievant's constructive demotion.
B. Agency's Opposition
The Agency submitted a statement affirming its agreement with the Arbitrator's decision. The Agency did not specifically respond to the Union's exceptions.
IV. Analysis and Conclusions
An arbitrator's determination regarding the timeliness of a grievance constitutes a determination regarding the procedural arbitrability of that grievance. See AFGE, Local 1501, 56 FLRA 632, 636 (2000); United States Dep't of Def., Dependents Sch., 55 FLRA 1108, 1110 (1999). An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See id. Such grounds include arbitrator bias or the fact that the arbitrator exceeded his or her authority. See id.
In challenging the Arbitrator's determination that the grievance was untimely filed, the Union does not allege that the Arbitrator's procedural arbitrability determination is deficient because the Arbitrator was biased or exceeded his authority, but only challenges the procedural arbitrability determination itself. Accordingly, consistent with Authority precedent, the Union's exception does not provide a basis for finding the award deficient. Therefore, the exception is denied. [n2]
The Union's exceptions are denied.
Footnote # 1 for 58 FLRA No. 130 - Authority's Decision
When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following:
. . . .
(d) Notice of any right the employee has to file a grievance[.]
Footnote # 2 for 58 FLRA No. 130 - Authority's Decision
To the extent the Union's arguments relate to the merits of the grievance, such as the claim that the grievant should not have been reassigned, the Arbitrator did not address the substantive issues raised in the grievance in view of his finding that the grievance was not timely filed. As such, the exceptions do not provide a basis for finding the award deficient. See, e.g., AFGE, Local 3614, Nat'l Council of EEOC Locals No. 216, 51 FLRA 1567, 1569-70 (1996); AFGE, Local 1945, 51 FLRA 514, 517 n.3 (1995).