Goddard Engineers, Scientists and Technicians Association, IFPTE, Local 29 (Union) and National Aeronautics and Space Administration, Goddard Space Flight Center, Greenbelt, Maryland (Agency)

[ v60 p593 ]

60 FLRA No. 118







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 procedur