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57 FLRA No. 140
Social Security Administration Baltimore, Maryland and AFGE, Local 1923 (Kaplan, Arbitrator), 0-AR-3401 (Decided February 8, 2002)
The Arbitrator found that while the Agency had not discriminated against the grievant on the basis of sex, race or protected activity as alleged, nonetheless, under the parties' agreement the grievant was entitled to priority consideration. Furthermore, the Arbitrator found that the grievant was entitled under the parties' agreement to a retroactive temporary promotion with backpay and interest.
The Authority concluded that the issue of whether the Arbitrator's award of a priority consideration was deficient could not be resolved without additional clarification. Accordingly, that portion of the award was remanded. The Authority noted that on remand, the Arbitrator should interpret and apply Article 26, Section 1 and Article 26, Section 13, as well as any other provisions the parties deem relevant, and take whatever action appropriate on the basis of that interpretation and application. The Authority also noted that on remand, the Arbitrator should also explain his interpretation of Article 18. The Authority noted that the apparent inconsistency between the Arbitrator's finding that the Agency did not discriminate against the grievant on the basis of race, gender or protected activity, and his conclusion that the Agency, at least to some extent, violated this portion of the parties' agreement. With respect to the award of a retroactive temporary promotion with backpay, the Authority found that the award was not deficient.
The Authority also found that the award of a temporary promotion was not based on nonfact and that section 2429.5 of the Authority's Regulations barred the Agency's remaining claim, that is that the Arbitrator's award was contrary to law because he made a classification determination. In this regard, the Authority noted that the record did not show that this issue was argued before the Arbitrator. The Authority noted that where an issue relates to the arbitrability of a grievance, it must be first raised before the Arbitrator as required by § 2429.5 of our Regulations. As this issue was not raised before the Arbitrator, the Authority was barred from considering it.