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57 FLRA No. 24
United States Department of Veterans AffairsGulf Coast Veterans Health Care SystemBiloxi, Mississippi and AFGE, Local 1045 (Byars, Arbitrator), 0-AR-3340 (Decided April 9, 2001)
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 the remedies sought in the grievance, including priority consideration and pay. The Authority remanded the pay aspect of the award to the parties for resubmission to the Arbitrator, absent settlement, for clarification.
Preliminarily the Authority concluded that the Agency's exception that the grievance was not procedurally arbitrable was barred by § 2429.5 of the Authority's Regulations. The Authority noted that under 5 C.F.R. § 2429.5, it will not consider issues that could have been, but were not, presented to the arbitrator. Here, the Authority found no indication that the Agency argued before the Arbitrator, as it did in its exceptions, either that the first-step grievance was untimely or that the first and second-step grievances 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. Accordingly, these argument were not considered by the Authority.
The Authority concluded that the award was not contrary to Agency regulation. The Authority explained that an award is deficient if it is inconsistent with a "governing" agency regulation. Although collective bargaining agreements, not agency-wide regulations, govern the disposition of matters to which they both apply, there is no contention that the parties' agreement governs this dispute. The Authority further stated that 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. As such, the award was not inconsistent with VA regulation MP-5.
The Authority also concluded that the award was not incomplete, ambiguous, or contradictory so as to make compliance impossible. However, the Authority determined that a remand was necessary to clarify the award of pay. The Authority noted that interim, or "front" pay is generally not authorized. As a result, the "pay" portion of the award was remanded to the parties for resubmission to the Arbitrator, absent settlement, for clarification. In particular, for the Arbitrator to 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.