[ v60 p593 ]
60 FLRA No. 118
GODDARD ENGINEERS, SCIENTISTS
AND TECHNICIANS ASSOCIATION
IFPTE, LOCAL 29
AND SPACE ADMINISTRATION
GODDARD SPACE FLIGHT CENTER
January 19, 2005
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 Kathrine B. Hogan 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 found that the grievance, which alleged that the Agency failed to provide the grievant with timely performance appraisals and failed to comply with a settlement agreement to promote the grievant, was not procedurally or substantively arbitrable. For the reasons set forth below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
On June 8, 2000, the grievant met with his supervisors to review his 1998 and 1999 performance appraisals (June 8 meeting). The events of the June 8 meeting were summarized in an memorandum (June 8 memorandum). The grievant initially filed the instant grievance in March 2003, claiming that his performance appraisals for 2000, 2001, and 2002 were late. The grievant "resubmitted" the grievance in June 2003 and, in addition to the claim regarding the late performance appraisals, the grievant asserted that the Agency had failed to provide the grievant with an "accretion of duties" promotion to GS-13, despite its agreement to do so. Award at 4 (quoting grievance). In this regard, the grievant claimed that, at the June 8 meeting, his supervisors promised him a promotion from GS-12 to GS-13 in return for his signature on his 1998 and 1999 performance appraisals. The grievance was unresolved and the parties submitted it to arbitration, where they agreed to resolve the threshold issues before considering the merits of the case. The parties stipulated the issue to be: "Are the [g]rievances . . . procedurally and/or substantively arbitrable?" Id. at 2.
With regard to the Union's claim that the Agency did not timely provide the grievant with his 2000, 2001, and 2002 performance appraisals, the Arbitrator found that the grievant "knew the date on which he was contractually entitled to receive a [p]erformance [a]ppraisal in each of the years asserted." Id. at 11-12. The Arbitrator determined that the grievant did not grieve the issue of the untimely performance appraisals until March 2003, "well beyond the stated contractual limits" for such a grievance to be timely. Id. at 12. As such, the Arbitrator found that the Union's claims regarding the untimely performance appraisals were not procedurally arbitrable. See id. at 13.
With regard to the Union's claim that the Agency failed to comply with an alleged, oral settlement agreement to promote the grievant from GS-12 to GS-13, the Arbitrator determined that claim was not "timely filed" because it was not included in the initial grievance and was based on the June 8 memorandum. Id. at 13 n.7. In addition, the Arbitrator found that there was nothing in the June 8 memorandum "mentioning such an agreement and the contents of the memorandum are highly ambiguous." Id. at 14.
Moreover, the Arbitrator determined that the alleged agreement the Union sought to implement "concern[ed] an accretion promotion to GS-13." Id. at 13. The Arbitrator found that Article 16, Section 16.02(e) (§ 16.02(e)) of the parties' agreement removes the action from the negotiated grievance procedure. [n1] Id. Based on the foregoing, the Arbitrator concluded that the grievance was not procedurally or substantively arbitrable. [ v60 p594 ]
III. Positions of the Parties
A. Union's Exceptions
The Union disputes the Arbitrator's determination that the portion of the grievance concerning the grievant's 2000, 2001, and 2002 performance appraisals was untimely. See Exceptions at 8-9. In this regard, the Union asserts that the grievant adhered to the parties' agreement by timely submitting the issue to the grievant's supervisor and the Agency's personnel department. See id. at 9.
The Union also asserts that the Arbitrator erred in determining that the grievance concerned a classification matter under § 7121(c)(5) of the Statute and thus was excluded from the parties' negotiated grievance procedure. The Union claims that the grievance concerned a settlement agreement between the parties, which entitled the grievant to a promotion to GS-13. See id. at 6, 4. The Union contends that the Arbitrator erred in determining that the settlement agreement was not valid and asserts that the grievant "may be entitled to . . . back pay." Id. at 6-7.
B. Agency's Opposition
The Agency contends that the Arbitrator properly determined that the grievance was untimely "in all respects". Opposition at 5. The Agency also contends that an "accretion of duties promotion is a classification matter which is exempt from the grievance process" under § 16.02(e). See id. at 5-6. In addition, the Agency asserts that the record does not demonstrate that the Agency agreed to provide the grievant with a promotion in exchange for him signing a performance appraisal. See id. at 6.
IV. The Arbitrator's procedural arbitrability
determinations are not deficient.
The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. See, e.g., AFGE, Local 3882, 59 FLRA 469, 470 (2003). However, the Authority has stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See id. (citing AFGE, Local 933, 58 FLRA 480, 481 (2003)). In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id.; see also United States Equal Employment Opportunity Comm'n, 60 FLRA 83, 86 (2004) (citing AFGE, Local 2921, 50 FLRA 184, 185-86 (1995)).
The Arbitrator found untimely the portion of the grievance concerning the Agency's failure to provide the grievant with performance appraisals for 2000, 2001, and 2002. See Award at 11-12. In challenging this determination, 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. See Exceptions at 8-9. Accordingly, the Union's exception provides no basis for finding the award deficient, and we deny the exception.
The Arbitrator also found untimely the Union's claim that the Agency failed to comply with an alleged settlement agreement to promote the grievant from GS-12 to GS-13. See Award at 13 n.7. The Union does not dispute this procedural arbitrability determination. Instead, the Union disputes the Arbitrator's alternative substantive arbitrability finding, that the alleged settlement agreement "concern[ed] an accretion promotion to GS-13" and was excluded from the negotiated grievance procedure under § 16.02(e). Id. at 13; see Exceptions at 5-7. As the Union provides no basis for finding the Arbitrator's procedural arbitrability determination deficient, we deny the exception. [n2] See Office & Prof'l Employees Int'l Union, Local 268, 54 FLRA 1154, 1159 (1998) (when an arbitrator has based an award on separate and independent grounds, an appealing party must establish that all of the grounds are deficient to have the award found deficient).
The Union's exceptions are denied.
Footnote # 1 for 60 FLRA No. 118 - Authority's Decision
Article 16, Section 16.02(e) of the parties' agreement states that the negotiated grievance procedure does not apply to "the classification of any position which does not result in the reduction in grade or pay of an employee." Opposition, Attachment, Agreement at 37.
Footnote # 2 for 60 FLRA No. 118 - Authority's Decision
We note that the Union's challenge to the Arbitrator's substantive arbitrability determination would also fail whether analyzed under § 7121(c)(5) of the Statute, as argued by the Union, or under § 16.02(e) of the parties' agreement, as found by the Arbitrator. In this regard, the Authority has held that a claim involving a permanent promotion based on accretion of duties is excluded from the negotiated grievance procedure under § 7121(c)(5). See AFGE, Local 1858, 59 FLRA 713, 715 (2004). In addition, the Union has not demonstrated that the Arbitrator's finding that the grievance was excluded from the parties' negotiated grievance procedure under § 16.02(e) fails to draw its essence from the parties' agreement. See Fraternal Order of Police, N.J. Lodge 173, 58 FLRA 384, 386 (2003) (Member Cabaniss dissenting on other grounds); NAGE, Local R4-45, 55 FLRA 695, 699 (1999) (Authority applies essence standard where a substantive arbitrability determination is based on the parties' agreement).