57 FLRA No. 24

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

Decision by Member Pope for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Linda S. Byars filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement when it failed to respond in a timely manner to a grievance filed under the parties' negotiated grievance procedure. To remedy the Agency's failure to respond to the grievance, the Arbitrator awarded the grievant remedies sought in the grievance, including priority consideration and pay. For the reasons that follow, we remand the pay aspect of the award to the parties for resubmission to the Arbitrator, absent settlement, for clarification.

II.     Background and Arbitrator's Award

      The grievant, employed at the New York VA medical center (VAMC), contacted several VAMCs inquiring about a GS-7 position. Based on telephone conversations with an Agency representative from the Mississippi VAMC, the grievant accepted a lateral transfer in order to position himself for promotion to a GS-7 position. The grievant subsequently applied for a GS-7 position, but was not selected. The Union filed a grievance contesting the selection. [ v57 p78 ]

      The Agency denied the grievance in a step-three response that was sent to the Union two days after the applicable time limit had expired. The Union informed the Agency that its response was not timely and that, pursuant to Article 42, Section 9 of the parties' agreement, the grievance should be resolved in favor of the grievant. [n1]  The Agency responded that Article 42, Section 9 did not apply because the issue raised in the grievance was non-grievable. When the matter was not resolved, it was submitted to arbitration. [n2]  The parties did not stipulate the issues, and the Arbitrator did not formulate issue statements.

      As relevant here, the Arbitrator rejected the Agency's contention that, under VA regulation MP-5, Part I, Chapter 771, Appendix A (VA regulation MP-5), the issue regarding the grievant's nonselection that was raised in the grievance was not grievable. [n3]  The Arbitrator found that, even if the Agency regulation applied, it does not exclude the "propriety of the determination of certification and ranking" from the parties' contractual grievance procedure. Award at 8.

      With respect to the timeliness of the Agency's response, the Arbitrator found the Union's position "much more persuasive." Id. In this connection, the Arbitrator stated that there is no dispute that the parties met to discuss the grievance, that the Agency's response was received by the Union two days after the time limit, and that the Union informed the Agency that the grievance must be decided in favor of the grievant pursuant to Article 42, Section 9.

      As for the remedy for the Agency's failure to timely respond, the Arbitrator determined that the first requirement of Article 42, Section 9 -- that receipt of the grievance have been acknowledged by the Agency in writing -- was met because the Agency acknowledged receipt of the grievance. With regard to the second requirement -- that the remedy requested is legal and reasonable under the circumstances -- the Arbitrator stated that there was "no argument by the Agency that the remedy requested [by the Union] was not legal or was unreasonable." Id. at 9. The Arbitrator also found that the Union's requests that the grievant receive priority consideration for future promotions and pay for the position for which he was not selected were reasonable. Id. As such, the Arbitrator awarded the grievant priority consideration for future promotions, and directed that the grievant "be paid the difference in pay between the two positions beginning the date the selectee assumed the [disputed] position." Id. at 12.

III.     Position of the Agency

      The Agency argues that the award is deficient because the Arbitrator ignored the facts that the first-step grievance was untimely and that the first and second-step grievances were submitted to the incorrect Agency official. The Agency also contends that the Arbitrator's award is contrary to VA regulation MP-5 because that regulation excludes from the scope of the grievance procedure the grievant's allegations that he should have been selected for the disputed position.

      Noting that the selectee was placed in the disputed position at the GS-6 level, the Agency contends that the award is deficient because it does not specify whether the grievant is entitled to pay at the GS-6 or the GS-7 level. The Agency also contends that the Arbitrator's award of priority consideration and pay "clearly exceeds the remedy provided in the [parties' agreement]" and is unreasonable. Exceptions at 7. The Agency maintains that it has already provided the grievant the appropriate remedy -- priority consideration --for an improper consideration.

IV.     Analysis and Conclusions

A.     The Agency's exception that the grievance was not procedurally arbitrable is barred by § 2429.5 of the Authority's Regulations.

      Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., Int'l Ass'n of Fire Fighters, Local F-89, 50 FLRA 327, 328 (1995).

      There is no indication in the award or the record that the Agency argued before the Arbitrator, as it does in its exceptions, either that the first-step grievance was untimely or that the first and second-step grievances [ v57 p79 ] were submitted to the incorrect Agency official. As these arguments relate to the procedural arbitrability of the grievance, they could, and should, have been presented to the Arbitrator. See, e.g., Office and Prof'l Employees Int'l Union, Local 268, 54 FLRA 1154, 1157-58 (1998). Accordingly, we refuse to consider these Agency arguments for the first time on exception.

B.     The award is not contrary to Agency regulation.

      An award is deficient if it is inconsistent with a "governing" agency regulation. Unites States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186, 192 (1990). Although collective bargaining agreements, not agency-wide regulations, govern the disposition of matters to which they both apply, see, e.g., United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 55 FLRA 163, 165-66 (1999), there is no contention that the parties' agreement governs this dispute. As the Agency's exception challenges the award's consistency with VA regulation MP-5, we review the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Arbitrator determined that the grievance concerned the "propriety of the determination of certification and ranking." Award at 8. Nothing in the plain wording of VA regulation MP-5 suggests that grievances regarding the propriety of certification and ranking are excluded from the scope of the grievance procedure. Indeed, the regulation, by its terms, excludes nonselection actions involving "properly ranked and certified candidates." Id. (emphasis added). As such, the award is not inconsistent with VA regulation MP-5. See United States Dep't of Agric., Farm Serv. Agency, Okla. State Office, Stillwater, Okla., 56 FLRA 679, 680-81 (2000).

C.     The award is not incomplete, ambiguous, or contradictory so as to make compliance impossible.

      The Agency argues that the award is deficient because it does not specify whether the grievant is entitled to pay at the GS-6 or the GS-7 level. We construe this argument as an assertion that the award is incomplete, ambiguous, or contradictory so as to make implementation impossible. For an award to be found deficient on this ground, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. See AFGE, Local 1843, 51 FLRA 444, 448 (1995) (citing VA Hospital, Newington, Conn., 5 FLRA 64, 66 (1981)).

      The Arbitrator's award does not specify that the grievant should be paid at the GS-7 level. However, the Agency concedes that it is the "GS-7 grade which the [g]rievant would have been entitled to receive if he had been selected for the [position]." Exceptions at 7. Moreover, the previous priority consideration granted by the Agency was for a GS-7 position. See note 2, supra. In these circumstances, the record supports a conclusion that the award encompasses pay at the GS-7 level. As such, the Agency has failed to demonstrate that implementation of the award is impossible.

D.     A remand is necessary to clarify the award of pay

      The remedies that the Agency disputes were specifically requested by the Union below, and the grievant's entitlement to the requested remedies under the parties' agreement was specifically raised below. See Award at 6, 9-12. The Agency did not argue below, as it does in its exceptions, that it had already provided priority consideration or that the remedies exceed those provided in the parties' agreement. See id. at 9, 10. Accordingly, under 5 C.F.R. § 2429.5, we do not consider those arguments here. However, interim, or "front" pay is generally not authorized. See SSA, Branch Office, East Liverpool, Ohio, 54 FLRA 142, 149 (1998). As a result, we remand the "pay" portion of the award to the parties for resubmission to the Arbitrator, absent settlement, for clarification. In particular, the Arbitrator should clarify whether either a retroactive temporary, or retroactive permanent promotion, was intended and, in the absence of such a promotion, fully explain the legal basis for an award of pay.

V.     Decision

      The portion of the award directing pay is remanded to the parties for resubmission to the Arbitrator, absent settlement, for clarification.

   Article 42, Section 9 provides that, if the Agency fails to comply with the relevant time limits, then the "grievance shall be resolved in favor of the grievant, provided that (1) receipt of the grievance had been acknowledged by [the Agency] at the appropriate step in writing and (2) the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance." Award at 9.

   Prior to the hearing, the Agency advised the Union that the nonselection of the grievant was "procedurally deficient" and that, pursuant to Article 22, Section 13 of the parties' agreement, the grievant would be given "priority consideration for the first GS-7 level position in which he is interested and for which he qualifies." Award at 4.

   VA regulation, MP-5, Part I, Chapter 771, Appendix A states, in relevant part, that the following is excluded from coverage under "the grievance procedure":

4.     Nonselection for promotion from a group of properly ranked and certified candidates or failure to receive a non-competitive promotion.

Award at 8.