American Federation of Government Employees, Local 12 (Union) and United States, Department of Labor, Occupational Safety and Health Administration, Washington, D.C. (Agency)

[ v61 p507 ]

61 FLRA No. 95







February 10, 2006


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 Earle William Hockenberry 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 Agency did not violate the parties' agreement by not placing the grievant in an Occupational Safety and Health (OSH) Specialist position when she completed the Agency's Career Enhancement Program (CEP). Therefore, the Arbitrator denied the grievance. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      On February 3, 1997, the grievant completed the Agency's CEP and, pursuant to the guidelines of that program, was promoted from a GS-5 position to OSH Assistant (GS-6), a bridge position to the target position of OSH Assistant (GS-7). On October 11, 2000, the grievant was promoted to the target position. In 2001, the grievant filed an informal equal employment opportunity (EEO) complaint alleging age and gender discrimination. The EEO complaint was settled with the Agency agreeing to promote the grievant to OSH Assistant (GS-7, step 9).

      In 2004, the Union filed the instant grievance alleging that the Agency had violated the parties' collective bargaining agreement and the settlement agreement by failing to promote the grievant to the position of OSH Specialist (GS-11 or GS-12). Unresolved, the grievance was submitted to arbitration. At the outset, the Arbitrator explained that the matter would be resolved using the parties' expedited arbitration process. The parties were unable to stipulate the issues to be resolved. Therefore, the Arbitrator framed the issue as follows: "Did [m]anagement violate Articles 3, 16 and 19 of the [parties' agreement] when it did not place [the grievant] into an [OSH] Specialist position . . . after her completion of the . . . [CEP]? If so, what shall be the remedy?" Award at 3.

      The Arbitrator reviewed the vacancy announcement for the CEP, witness testimony, and documentary evidence concerning other employees who had completed the CEP. Based on this evidence, the Arbitrator found that the grievant's successful completion of the CEP entitled her to "a two level opportunity to move from her then GS-5 position to a GS-7 position as a Safety and Occupational Health Assistant, and not a Safety and Occupational Health Specialist[.]" Id. at 9 (emphasis in original). In addition, after reviewing the settlement agreement, the Arbitrator found that the grievant was entitled to "nothing more tha[n] a retroactive promotion to the position of Safety and Occupational Health Assistant, GS-7, step 9 . . . ." Id.

      The Arbitrator noted "the requirement of the [s]ettlement [a]greement that `management will work with [the grievant] on development of an Individual Development Plan'" (IDP) and found that the Agency had attempted to fulfill this requirement "without success due to the inability of the [g]rievant to provide essential training credentials." Id. In this regard, the Arbitrator explained that "[a] clear reading of . . . the IDP indicates that there is an obligation on the part of both parties" and he found that the grievant's failure to provide necessary documentation "erodes any argument of bias or discrimination on the part of the Agency in not completing the plan." Id.

      Based on the foregoing, the Arbitrator denied the grievance. [ v61 p508 ]

III.     Positions of the Parties

A.      Union's Exceptions

      The Union argues that the award is deficient because the Arbitrator incorrectly permitted the Agency to invoke the expedited arbitration process under the parties' 2005 agreement rather than the process under the parties' 1992 agreement. The Union also argues that the Arbitrator incorrectly relied upon § 3 of the parties' settlement agreement as one of the grounds for denying the grievance. In this connection, the Union claims that § 3 precludes the grievant from initiating "new grievances on the facts or circumstances" of the informal EEO complaint. Exceptions at 7. The Union claims this provision is inapplicable because the informal EEO complaint and the instant grievance concern different facts and circumstances. In any event, the Union argues that the Arbitrator's reliance on this provision is inconsistent with his decision to hear the grievance on the merits.

      Finally, the Union argues that the Arbitrator improperly relied on § 4(b) of the settlement agreement, which requires management to work with the grievant on the development of an appropriate IDP because that provision, according to the Union, is irrelevant. Even assuming the provision is relevant, the Union argues that the Arbitrator misinterpreted it as requiring the grievant and management to jointly develop the IDP. See id. at 8.

B.      Agency's Opposition

      According to the Agency, the Arbitrator did not err in deciding to use the expedited arbitration process because the parties agreed to use that process. In this connection, the Agency asserts that both the parties' 1992 and 2005 agreements permitted the parties to use the expedited arbitration process "based on mutual agreement." Opposition at 6 (citing Article 44, § 7(c) of the 1992 agreement and Article 48, § 7(b) of the 2005 agreement). In addition, the Agency asserts that the Arbitrator correctly f