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60 FLRA No. 91
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
November 30, 2004
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 Merry C. Hudson filed by the Union under 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 denied a grievance alleging that the Agency violated the parties' master agreement when it failed to promote the grievant.
For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
In October 2002, the Agency hired the grievant as a GS-9 Contract Specialist Intern, with promotion potential to GS-11. Prior to this, the grievant had been employed with the Department of Defense (DOD) as a contract specialist for almost a year. The grievant received a fully satisfactory rating with no deficiencies for the period from October 2002 through March 2003 from his supervisor at the time.
The Union filed a grievance contending that the grievant should have been promoted to GS-11 on March 31, 2003. The parties were unable to resolve the dispute and the matter was submitted to arbitration.
The parties did not stipulate the issues to be resolved by the Arbitrator. The Arbitrator framed the issues as follows:
Whether the [Agency] violated the Master Agreement when it failed to provide Grievant a Career Ladder Plan. Whether the [Agency] violated the Master Agreement when it failed to promote Grievant on March 31, 2003. If so, whether the Grievant is entitled to retroactive back pay.
Award at 2.
The Arbitrator found that the grievant was not provided a Career Ladder Plan, in violation of the parties' master agreement which requires such plans to be given to employees in career ladder positions. However, the Arbitrator concluded that in order to prevail, the grievant must show that but for this contract violation, the grievant would have been promoted.
The Arbitrator found that, although the grievant satisfied the 1-year requirement for specialized experience based on his DOD experience, the grievant was not qualified for promotion on March 31, 2003. In this regard, the Arbitrator relied on testimony of the grievant's supervisor during March 2003 that the grievant had not completed specific course requirements for promotion. The Arbitrator also noted that the grievant's current supervisor testified that the grievant was still not qualified for promotion at the time of the hearing in early February 2004 and that he still lacked the necessary skills and experience.
Lastly, the Arbitrator noted other arguments made by the Union; namely, that the grievant was improperly denied the promotion to GS-11 in reprisal for his union activity and that the Agency failed to provide the grievant with a 60-day notice of deficiencies. Also, the Arbitrator noted that the Union claimed that the grievant was entitled to a temporary promotion because he was working at least 60 percent of the time as a GS-11. The Arbitrator found that none of these contentions was raised during the "appeals process and therefore cannot be considered." Id. at 8.
Having found that the grievant was not qualified for promotion, the Arbitrator denied the grievance.
III. Union's Exceptions
The Union asserts that the award is contrary to law, rule or regulation, in violation of the Office of Personnel Management Guidelines for Merit Promotion [ v60 p460 ] (OPM Guidelines) unde 5 C.F.R. § 335.103(c)(3)(i [*] and the parties' master agreement.
The Union also maintains that the award "did not appropriately define all of the issues." Exceptions at 1. In this respect, the Union maintains that the Arbitrator failed to include the issue concerning the grievant's entitlement to back pay for performing work at the higher grade level more than 25 percent of the time under the parties' master agreement. Id. at 1. In the same vein, the Union excepts to the Arbitrator's failure to address the issue of the grievant's entitlement to a temporary promotion in accordance with the parties' master agreement based on his performance of the same duties as contract specialists at the GS-11 level. Id. at 2.
Lastly, the Union maintains that the Arbitrator erred in finding that the grievant was not qualified for promotion on March 31, 2003. The Union argues that the Arbitrator was compelled to find otherwise based on her finding that the grievant met the 1-year specialized experience requirement necessary for promotion to the GS-11 level. The Union contends that since "there is no career ladder plan, [neither] the Agency nor the Arbitrator can arbitrarily substitute subjective promotion criteria in its place." Id. at 5. The Union maintains that the Agency must promote the grievant in accordance with Article 22, Section 4A.3 of the parties' master agreement, which states that "in the event that the employee met the promotion criteria, but the appropriate management official failed to initiate the promotion timely, the promotion will be retroactive to the beginning of the first pay period after the pay period in which the requirements were met." Id.
IV. Agency's Opposition
The Agency asserts that the Arbitrator's award appropriately defined the issues and that the award is consistent with all applicable regulations and the parties' master agreement.
V. Analysis and Conclusions
A. Contrary to Law Claim
The Union asserts that the award is contrary to law, rule or regulation, and in violation of OPM Guidelines under 5 C.F.R. 335.103(c)(3)(i). The Union does not provide any arguments regarding how the award violates this regulatory provision. Consistent with Authority precedent, we deny the Union's claim as a bare assertion. See, e.g., AFGE, Local 1858, 56 FLRA 1115, 1116 (2001).
B. Claim Disputing Arbitrator's Arbitrability Determination
The Union excepts to the Arbitrator's finding that the claim pertaining to the grievant's entitlement to a temporary promotion and retroactive backpay was not properly before her because this issue was not properly raised during the grievance or appeals procedure. We note that there is no dispute that the Arbitrator addressed and resolved the temporary promotion claim by finding that the claim was not properly raised. Rather, the Union disputes the Arbitrator's finding on the ground that this issue was properly raised at the third-step of the grievance procedure. See Exceptions at 2. In this regard, we find that the Union's exception directly challenges the Arbitrator's procedural arbitrability determination.
As relevant here, the Authority has concluded that "[p]rocedural arbitrability involves `procedural questions, such as whether the preliminary steps of the grievance procedure have been exhausted or excused[.]'" Fraternal Order of Police, New Jersey Lodge 173, 58 FLRA 384, 385 (2003) (quoting Elkouri & Elkouri, How Arbitration Works 305 (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997)). Moreover, an arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). Since the Union's exception directly challenges a procedural arbitrability determination, it provides no basis for finding the award deficient. Accordingly, we deny the Union's exception in this regard. [ v60 p461 ]
C. Claim that Award Fails to Draw Its Essence from the Master Agreement
The Union essentially claims that under Article 22, Section 4A.3 of the parties' master agreement, the Arbitrator was compelled to order the Agency to retroactively promote the grievant in line with her finding that the grievant met the 1-year specialized experience requirement necessary for promotion to the GS-11 level. We construe the Union's contention as a claim that the award fails to draw its essence from the master agreement.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See AFGE Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
Article 22, Section 4A.3 of the parties' master agreement requires retroactive promotions "[i]n the event that the employee met the promotion criteria, but the appropriate management official failed to initiate the promotion timely[.]" The Arbitrator found that the grievant was not qualified, i.e., that the grievant did not meet the promotion criteria. As such, the Arbitrator was not compelled to retroactively promote the grievant under this provision of the parties' master agreement.
As such, we find that the Union has failed to demonstrate that the Arbitrator's findings are irrational, unfounded, implausible, or manifest a disregard for the agreement. Consequently, the Union has not demonstrated that the award is deficient on essence grounds. See, e.g., American Federation of Government Employees, Local 1546, 52 FLRA 94, 97-98 (1996).
The Union's exceptions are denied.
Footnote * for 60 FLRA No. 91 - Authority's Decision
(c) Covered personnel actions - (1) Competitive actions. Except as provided in paragraphs (c)(2) and (3) of this section, competitive procedures in agency promotion plans apply to all promotions under § 335.102 of this part and to the following actions:
. . . .
(3) Discretionary actions. Agencies may at their discretion except the following actions from competitive procedures of this section: (i) A promotion without current competition of an employee who was appointed in the competitive [service] from a civil service register, by direct hire, by noncompetitive appointment or noncompetitive conversion, or under competitive promotion procedures for an assignment intended to prepare the employee for the position being filled (the intent must be made a matter of record and career ladders must be documented in the promotion plan)[.]