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Title: Department of Veterans Affairs and AFGE Local 3028
Date: January 24, 2005
Arbitrator: Burton White
Citation: 2005 NAC 123

IN THE MATTER OF THE ARBITRATION

Between

AFGE Local 3028

Union

And

Department of Veterans Affairs  
Anchorage, Alaska

Employer

)

)

)

)

)

)

) 

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FMCS No. 040811-57037-7



Response to Agency’s
Request for Dismissal

 

Before Burton White, Arbitrator  
 

 

For the Union:



Kevin D. McGee
President
AFGE Local 3028
P. O. Box 143264
Anchorage, Alaska 99514
For the Employer:



Glen E. Woodworth, Esq.
Agency Representative
Alaska VA Health Care System
2925 DeBarr Road
Anchorage, Alaska 99508

An Arbitrator’s Audience                                                                                          
Excerpts from the Master Agreement                                                                      2
Positions of the Parties                                                                                             3
Findings of Fact                                                                                                          5
Discussion                                                                                                                  10
Regarding Timeliness                                                                                                10
Conclusion                                                                                                                  15
Regarding the Scope of Collective Bargaining                                                      16
Conclusion                                                                                                                  18
Arbitrator’s Determination                                                                                        18


The parties in this matter are Local 3028 of the American Federation of Government Employees (Union or AFGE) and the Department of Veterans Affairs, Anchorage, Alaska (Agency or Employer). The relevant collective bargaining agreement is the Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees, effective March 21, 1997 (Agreement).

The dispute addressed in this document is over the arbitrability of a grievance filed on behalf of Estel Johnston, Licensed Vocational Nurse (LVN), whose employment was terminated by the Agency during her probationary period.

The Agency argues that the grievance is not arbitrable for two reasons: it is untimely and it seeks to address matters outside the scope of bargaining.

The parties presented their positions through written briefs and appended documents.

An Arbitrator’s Audience

 In my view, in addition to the advocates of the parties to whom an Opinion is submitted, grievants and other employees, supervisors and other management personnel are key parts of the audience for arbitrators’ Opinions. One cannot assume that all members of such a wider audience will have access to the evidence, or that they will be as familiar as are the advocates with other details of the case or with arbitration practices, procedures, and standards. With that larger audience in mind and where I deem it may be helpful to a reader’s understanding, I provide background for my comments.


EXCERPTS FROM THE MASTER AGREEMENT

PREAMBLE

Section 2: The Department and the Union agree that a constructive and cooperative working relationship between labor and management is essential to achieving the Department’s mission and to ensuring a quality work environment for all employees. The parties recognize that his relationship must be built on a solid foundation of trust, mutual respect, and a shared responsibility for organizational success.

ARTICLE 31—TEMPORARY, PROBATIONARY, AND PART-TIME EMPLOYEES/JOB SHARING

***[1]

Section 3 – Probationary Employees

A. The Department agrees to provide probationary employees with the opportunity to develop and to demonstrate their proficiency.

B. During the probationary period, frequent communication between the supervisor and employee is encouraged. In the event there are deficiencies in conduct and/or performance that may affect an employee’s standing for conversion to career-conditional status, supervisors will counsel employees in a timely manner and document the meeting, with a copy given to the employee.

***

ARTICLE 40—ARBITRATION

A notice to invoke arbitration shall be made in writing to the opposite party within thirty (30) calendar days after receipt of the written decision rendered in the final step of the grievance procedure.

ARTICLE 42—GRIEVANCE PROCEDURE

Section 4 – Jurisdiction

If either party considers a grievance nongrievable or nonarbitrable, the original grievance will be considered amended to include this issue. The Department must assert any claim of nongrievability or nonarbitrability no later than the Step 3 decision.

***

Section 7 – Procedure

***

Step 1. An employee and/or the Union shall present the grievance to the immediate or acting supervisor with and information copy to the Director of the facility in writing within (30) days of the date that the employee or Union became aware or should have become aware of the act or occurrence or anytime if the act or occurrence is of a continuing nature. ***

Step 2. *** The grievance must state, in detail, the basis for the grievance and the corrective action desired. ***

Step 3. If no mutually satisfactory settlement is reached as a result of the second step, the aggrieved party or the Union shall submit the grievance to the Director, or designee, in writing, …. The Director or designee, [sic] will meet with the aggrieved employee and their [sic] representative within seven (7) calendar days to discuss the grievance. The Director or designee will render a written decision to the aggrieved party and the Union within ten (10) calendar days after the meeting.

Step 4. If the grievance is not satisfactorily resolved in Step 3, the grievance may be referred to arbitration as provided in Article 40, Arbitration.

***

Note 5: It is agreed that grievances should normally be resolved at the lowest level possible. However, there will be times when a grievance may be more appropriately initiated at the second or third step of the procedure for example, [sic] when the supervisor at the lower level clearly has no authority to resolve the issue, or when the Union grieves an action of a management official other than a Step 1 supervisor. When a grievance is initiated at a higher step, the time limits of Step 1 will apply.

***

Section 8 – Extensions

Time limits at any step of the grievance procedure may be extended by mutual consent of all parties.

Section 9 – Failure to Respond in Timely Manner

Should management fail to comply with the time limits at Step 1, the grievance may be advanced to Step 2. Should management fail to comply with the time limits for rendering a decision at Step 2 or Step 3, the grievance shall be resolved in favor of the grievant, provided that (1) receipt of the grievance had been acknowledged by management at the appropriate step in writing and (2) the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance.

POSITIONS OF THE PARTIES

Position of the Employer

Timeliness

Article 40, Section 1 of the Agreement requires that notice of arbitration be given within thirty calendar days after receipt of the written decision rendered in the final step—Step 3—of the grievance procedure.

The Union filed a Step 3 grievance on April 16, 2004. On April 21, 2004, the Agency issued a written decision that the matter was not grievable. Subsequently, the parties exchanged several memos, and, on June 17, 2004, the Union informed the Employer that it intended to invoke arbitration.

The Agency writes, “The Union’s notice … was made 57 calendar days after the Agency’s written decision in the final step of the grievance procedure. The Union failed to meet the contract time line of 30 calendar days for invoking arbitration. Therefore, the Union’s arbitration request must be dismissed.” (Br. p. 2.)

Regarding the Scope of Collective Bargaining

The original grievance sought to restore the Grievant to duty with back pay. Termination of a probationary employee is outside the scope of bargaining. The Union “amended its grievance by stating that ‘it was not grieving the removal of a probationary employee but the process that was done and the violations to the Master Agreement.’ *** However, the exclusion [from the scope of bargaining of the termination of a probation employee] applies not only to the removal itself but also to the process used to remove a probationary employee …” . (Br. p. 2.)

The Agency states, “Management rights cannot be waived. A contract provision that excessibly interferes with the exercise of a management right is contrary to law and is not enforceable.” (Br. p. 3.)

Position of the Union

Timeliness

The grievance was first filed on April 16, 2004. In response to the Agency’s claim  that the matter was not grievable, the Union explained that it was protesting the process, not the removal itself. The Agency’s subsequent response did not address the clarification; it merely repeated the position it had stated in its previous communication. On May 12, 2004, the Union submitted the grievance for the third time “for a response to the matter identified in the Union’s 04/23/04 memorandum”.[2] (Br. p. 2.)

In the Union’s view, this submission required a written response from the Agency  “within the fourteen (14)-calendar day requirement, which would have been 05/26/05”. (Br. p. 2.) No response was received, and the Union submitted the notice to invoke arbitration on June 17, 2004, twenty-six calendar days after the expiration of the Agency’s time to respond.

The Union also argues, “The Union fulfilled the timeliness requirements based on the contractual stipulation in the step-1 procedures that identified the act or occurrence was of a continuing nature”. (Br. p. 2.)

The Union writes, “It should be noted that due to the agency failure to respond at the Step-3 level in a timely manner, the grievance resolution should have been resolved in favor of the grievant/union. The resolution that the Union was seeking was whether or not the agency management was going to adhere to their contractual obligations. (Br. p. 2.)

Regarding the Scope of Collective Bargaining

The Union argues that the procedure that is encouraged in the Master Agreement [Article 31, Section 3, B.] does “not excessively interfere with the exercise of a management right and is not contrary to the law and should be enforceable”. (Br. p. 3)

The Union also cites the mutual pledge of cooperation between the parties that appears in Section 2 of the Preamble to the Master Agreement. 

Findings of Facts

Preliminary Comment

This section provides background for the “Findings of Fact” that follow.

The Union Brief states—and relevant memoranda indicate—that the grievance was modified twice; that is, the Union submitted three “editions” of the grievance to the Agency.[3] Only two grievance documents were submitted to me as Arbitrator. The first version is a four-page document. (Agency Tab 4.) The other version is a two-page document offered by the Union at Tab 34 and included among the several documents presented by the Agency at Tab 6.

What’s more, the Agency returned the grievance to the Union three times. The Union responded each time. Each one of the six cover communications indicated that a version of the grievance was attached, but the referenced attachments were not included with the letters in the exhibits. Some degree of detective work was required to ascertain the version of the grievance that was referred to in each piece of correspondence.

There are several textual differences between the two versions of the grievance that are in the record. Most do not appear relevant to the aspect of the dispute that is currently under consideration.[4] However, when one concentrates on the entries that appear under the heading, “What adjustment/resolution is expected” (hereafter referred to as “remedy statement”), three significant modifications become evident. In the second of the two documents, the remedy statement that had appeared in the original filing has been deleted, the notation “N/A” (in typeface) appears in its place, but the “N/A” entry has been crossed out by hand and the following handwritten notation inserted:

Clarification whether or not the Alaska VA violated the AFGE Master Agreement.

My review of all the documents suggests the following:

1.        The grievance is dated April 16, 2004, and was received on that date. (Agency Tab 4.) In this version the remedy statement  is, “That Estel Johnston be restored to her duty position and given any backpay to date of Termination. Individual be made whole.” There is no accompanying letter in the record. (This is not surprising since the filing of a grievance does not usually come as an attachment to a cover letter.)

2.        The grievance was returned by the Agency on April 21, 2004. (Agency Tab 5; Union Tab 31.)

3.        The first Union letter in the series is dated “Friday” April 22, 2004, and was received on April 23, 2004.[5] (Union Tab 32 and at Agency Tab 6.) This letter indicates that a grievance is attached. For reasons that will be presented shortly, I infer that the original grievance was resubmitted with this letter.

4.        The Agency returned the grievance document by memorandum dated April 27, 2004. (Union Tab 33 and at Agency Tab 6.)

5.        The second Union letter is dated May 12, 2004. The “received” stamp on the letter indicates it was received on that day. (Union Tab 35 and at Agency Tab 6.) This letter states, “The resolution on behalf of the employee has been removed”. The letter states that a grievance is attached. I infer from the comment, “The resolution … has been removed” that in this version of the letter, the original remedy was deleted and the notation “N/A” was inserted in its place.

6.        The Agency returned the grievance document by memorandum dated May 12, 2004.

7.        The third Union letter, dated Monday, May “19”, 2004, was received on May 17, 2004.[6] (Union Tab 37.) This letter indicates that a grievance is attached. I infer from the record that the grievance that was attached was the third and final edition. The record also suggests that the third edition was created directly on the face of the version that had been submitted on May 12th: the entry “N/A” has been crossed out by hand and in its place, a handwritten entry has been inserted. As a result of these emendations, the remedy statement has become, “Clarification whether or not the Alaska VA violated the AFGE Master Agreement”.

The following table summarizes the above discussion. It shows the sequence of submission and response and is organized to show how each communication in the series relates to the next.

Document

Tab where grievance is  version found

Date

Tab where cover letter is found

Relevant passage(s)

Grievance, version

1

Agency 4

(Not in Union packet.)

April 16, 2004

No cover letter in record.

In grievance: “That Estel Johnston be restored to her duty position and given any backpay to date of Termination. Individual be made whole.”

VA response

 

April 21, 2004

Agency 5

Union 31

“… [R]emoval of a probationary employee is not a grievable issue. The remedy requested will not be considered and the package is being returned to you accordingly”.

Grievance version 1 resubmitted?

 

April 23, 2004

Agency 6
Union 32

Written in response to Agency memo “dated 21 April 2004”.

In Union letter: “The Union is not grieving the removal of a Probationary employee but the process that was done and the violations to the Master Agreement.” Grievance “attached”.

VA response

 

April 27, 2004

Agency 6

Union 33

Written in response to “April 23, 2004, Correspondence.”

Text suggests that the remedy statement in the version sent with the Union’s letter of 4/23 is the same as in the original  grievance and adds, “Under this request for relief, the issue being grieved can only be considered to be the termination of the probationary employee in question”.

Grievance version 2

Not in record as a separate exhibit.

May 12, 2004

Agency 6
Union 35

Written in response to memo “dated April 27, 2004”.

In Union letter: “The resolution on behalf of the employee has been removed.”

In grievance: “N/A”

VA response

 

May 12, 2004

Agency 6

Union 36

Written in response to “5/12/04 … Submission”.

“… [Y]ou have not listed any request for relief…”.

Grievance

3

Agency 6

Union 34

May 17, 2004

Union 37

(Not in Agency packet.)

Written in response to memo “dated “12 May 2004:

In Union letter: “Union has put an adjustment/resolution” as requested.

In grievance: N/A” “Clarification whether or not the Alaska VA violated the AFGE Master Agreement.”

VA response

No response in record

Findings

  1. By memorandum dated April 13, 2004, Estel Johnston, LVN, the Grievant in this case, was terminated effective April 16, 2004[7]. (Agency Tab 8; Union Tab 30.)
  2. The Union filed a Step 3 grievance with the Director’s Office on April 16, 2004. (Agency Tab 4) That document asked:

That Estel Johnston be restored to her duty position and given any backpay to date of Termination. Individual be made whole. 

  1. The Agency responded on April 21, 2004, with a memorandum from Terri Boswell, the Human Resources Officer (HR Officer). (Agency Tab 5; Union Tab 31.) That communication stated:

… [R]emoval of a probationary employee is not a grievable issue. The remedy requested will not be considered and the package is being returned to you accordingly.

  1. The Union responded on April 23, 2004, with a letter to the Director.[8] (Union Tab 32; Agency Tab 6.) Among other things, the response stated:

The Union is not grieving the removal of a Probationary employee but the process that was done and the violations to the Master Agreement.

The Union expects that the attached Step-3 Grievance be answered.[9]

  1. The Agency responded April 27, 2004, by memorandum from the HR Officer. (Agency Tab 6; Union Tab 33.) That document stated:

Thank you for your correspondence of April 23, 2004. The relief requested in the subject Step-3 Grievance is stated as:

“That Estel Johnston be restored to her duty position and given any backpay to date of Termination. Individual to be made whole.”

Under this request for relief, the issue being grieved can only be considered to be the termination of the probationary employee in question. Since this is not a grievable issue, the documentation is again being returned to you without further consideration.

  1. The Union responded on May 12, 2004, by letter to the Director (Agency Tab 6; Union Tab 35), saying, in part:

Memorandum from Ms. Terri Boswell … returning the Unions [sic] Step-3 Grievance has a valid point. The Union is not grieving the removal of a probationary employee[,] but the process that was done and the violations to the Master Agreement. The resolution on behalf of the employee has been removed.[10]

  1. On May 12, 2004, the HR Officer returned the grievance to the Union with a cover memorandum (Agency Tab 6; Union Tab 36) that stated, in relevant part:

Thank you for submitting your 5/12/04 correspondence renewing your request to have a Step 3 Grievance addressed by the Facility Director. The request is being returned to you, as once again you have not listed any request for relief which might be considered by the deciding official. Any grievance submitted must state, in detail, the basis for the grievance and the corrective action desired.[11]

In the event you wish to have this issue reviewed by a third party[,] we will address accordingly. Otherwise we will be closing our file and not addressing any further communications on this issue.

  1. The Union response (Union Tab 37), written to the Director, was received by the Agency on May 17, 2004.[12] The memorandum states,  “Union has put an adjustment/resolution requested … [by the Agency’s May 12th memorandum]”.

As noted, this edition of the grievance does not contain the remedy request that had appeared in the first version. The typed “N/A” (presumably entered on the second edition) has been crossed out by hand and the following entry has been written in by hand:

Clarification whether or not the Alaska VA violated the AFGE Master Agreement.

(Union Tab 34; Agency Tab 6.)

  1. On June 17, 2004, the Union wrote to the Director indicating its intent to invoke arbitration. (Union Tab 38, Agency Tab 7.)
  2. There is no indication in the record before me when the Agency first claimed that the dispute was not arbitrable on the grounds that the Union’s letter invoking arbitration was untimely.

DISCUSSION

For reasons that will be presented in the following text, I conclude that the Union’s invocation of arbitration was timely; however, the grievance addressed matters outside the scope of bargaining and for this reason is not arbitrable.

Regarding Timeliness

The grievance was submitted at Step 3 of the grievance procedure. The Agreement tells us that the time limits of Step 1 apply “[w]hen a grievance is initiated at a higher step”. (Art. 42, § 7, note 5.) Under the time limits of Step 1, a grievance can be filed within thirty days of the event. After the filing, the appropriate Agency official has fourteen days in which to provide a written response.

The Agency argues that in the case under consideration, the Employer’s written decision was rendered on April 21, 2004, when the Agency informed the Union, “removal of a probationary employee is not a grievable issue”. (Fact item #3.) If that is the case, fifty-seven days then elapsed before June 17, 2004, the day the Union moved the matter to Arbitration. This period exceeded the contractual time lines and so the grievance must be deemed to be inarbitrable because the move to arbitration was untimely.

The Union argues that because of clarifications, the grievance was not submitted in its final form until May 12, 2004. (As noted above, the final version of the grievance was actually submitted on May 17.) It expected the Agency’s decision by May 26, 2004; that is, within the time span provided for in Article 41, Section 7 and Article 42, Section 1.[13]

The Grievant was terminated effective April 16, 2004.[14] (Finding of Fact 1.) The grievance was filed on April 16. (Finding of Fact 2.) The filing of the first edition of the grievance was timely.

The Agency returned the grievance on April 21, 2004, stating that termination of a probationary employee was not grievable.[15] (Finding of Fact 3.) This response was correct.[16]

The Union responded on April 23, 2004—still within the contractual time limits for filing a grievance—in the form of a clarification, “The Union is not grieving the removal of a Probationary [sic] employee[,] but the process that was done and the violations to the Master Agreement.” (Finding of Fact 4.)

The Agency replied on April 27, 2004, and again cited the remedy that had been requested in the original grievance. (Finding of Fact 5.) The Union’s response on May 12—still within thirty days of the event that has triggered the grievance—was to delete that proposed remedy. (Finding of Fact 6.)

The Agency returned the grievance on May 12, 2004. The concern voiced in the cover letter is that the grievance was incomplete. (Finding of Fact 7.) Indeed, the Agency’s letter points out how the deficiency can be cured. Moreover, it states, “In the event you wish to have this issue reviewed by a third party we will address accordingly.”

The Union then submitted the third version of the grievance. As I have previously explained, this version is date stamped May 12, 2004, but the evidence indicates that this stamp was applied to the document when it expressed the second version of the grievance. It appears that the third version of the grievance was created by emendations made directly on the second edition of the document. This version of the grievance accompanied the Union letter of May 17, 2004 (Union Tab 37).

The Agency contends that since it had issued a written decision on April 21, 2004, that “the matter” was not grievable, the Union’s deadline for invoking arbitration was thirty days from that date. However, the “matter” addressed in the Employer’s written decision of April 21—the matter that was not grievable—was the Union’s contention that the Grievant should be restored to duty with back pay. However, as the above discussion shows, that version was then modified. The Agency acknowledges this, “The Union lated amended its grievance…”. (Br. p. 2.)

As far as the record before me is concerned, the very last letter from the Agency regarding the grievance filing was the letter of May 12, 2004, in which the Agency spoke of the grievance as being incomplete.

The Union responded with the third version of the grievance on May 17, 2004. This time the Union did not seek to challenge the removal of the probationary employee or the procedure of that removal—neither of these matters are arbitrable—this time the Union sought “Clarification whether or not the Alaska VA violated the AFGE Master Agreement”. However, the Union Brief reflects ambivalence about this. I shall address this point further in the next section.

There is no indication in the record before me that the Agency ever responded to this final submission. As far as the record shows, the Agency rejected the grievance because it dealt with removal of a probationary employee (Agency letters of April 21 and April 27) and because it was incomplete (Agency letter of May 12). There is no showing that the Agency informed the Union that it considered the remedy that was requested in the May 17, 2004, version (i.e. “Clarification whether or not the Alaska VA violated the AFGE Master Agreement”) not to be arbitrable.

Moreover, there is no showing in the evidence before me when—if ever—the Agency informed the Union that it considered that the matter was inarbitrable because the Union had failed to invoke arbitration within the required time limit. Generally speaking, a claim that a grievance is untimely should be made at the earliest possible opportunity.[17]

Although the following aspect of the dispute was not addressed in the Briefs, one more point needs to be addressed. As noted, the preponderance of the evidence indicates that the third version of the grievance was submitted to the Agency on May 17, 2004. By my reckoning—not counting the day of the event, but including the day of receipt—May 17 falls thirty-one calendar days after April 16. However, I do not find from this fact that the grievance is untimely. My reasons follow:

  1.  May 16, 2004, fell on a Sunday. The submission was to the Director of the facility. Nothing in the record tells whether the Director’s office would have been open on a Sunday. Moreover, as Ernest Hadley points out (Hadley, p. 50), “The practice of most administrative adjudicators is to extend a filing period when the last day of that period falls on a Saturday, Sunday or federal holiday”. [18]
  2. This not an instance in which a union waited until the last minute to submit its challenge and then missed the grievance procedure deadline by some miscalculation. In this instance, the Union filed the very day of the triggering event, but articulated its concern so as to render the grievance nonarbitrable.

Moreover, I note that in each instance in which the HR Officer rejected the grievance, the Shop Steward attempted to address the identified shortcoming. Each Union response was promptly filed.

In any case, the Agency rejection that triggered the third submission was issued on May 12, 2004. Reasonable time must be allowed to respond. The Union modified the grievance and submitted it in five calendar days, including Saturday and Sunday.

In light of the above considerations, I cannot conclude that a filing on Monday, May 17, instead of Sunday, May 16, was a fatal error.

Article 42, Section 7, note 5, provides that when a grievance is filed at the third step of the procedure, “the time limits of Step 1 will apply”. Step 1 requires that the appropriate official “must meet with the employee/representative and provide a written answer within fourteen (14) calendar days”. There is no indication in the record that any official of the Agency ever acknowledged or responded to the Union’s submission of May 17, 2004. I add the observation  that the Agency did respond on three occasions to earlier versions of the grievance to point out what it perceived to be significant errors in the submission.

Conclusion: For the reasons stated above, it is my finding that the grievance was timely.

I now turn to two other parts of the Union argument. The Union argues:

It should be noted insofar [sic] that due to the agency failure to respond at the Step-3 level in a timely manner, the grievance resolution should have been resolved in favor of the grievant/union. The resolution that the Union was seeking was whether or not the agency management was going to adhere to their [sic] contractual obligations. (Br. p. 2.)

I cannot determine from this articulation whether the Union is arguing that the forfeiture addressed in Article 42, Section 9 of the Agreement be ordered or is merely speculating that forfeiture could be applied. In any case, given the record before me, I cannot agree that in this case that resolution should go to the Grievant by forfeit. According to the Agreement, forfeiture can occur only if two conditions are met. One of the conditions is that forfeiture can occur only if “receipt of the grievance has been acknowledged by management at the appropriate step in writing …”. The Agency letters dated April 21, 2004, and April 27, 2004, can be considered to be acknowledgements of the first two versions of the grievance, but there is no analogous acknowledgement with regard to version three. Of even more importance, the second condition requires that “the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance”.[19]

Finally—on the matter of timeliness—I find no merit in the Union contention that the reference in Step 1 of the grievance procedure to a continuing occurrence has application to this case. The removal of an employee is a single action, not a continuing one.[20]

Regarding the Scope of Collective Bargaining

The Agency Brief directly addresses problems in the first two versions of the grievance and addresses the third version indirectly.

It is clear that the first version of the grievance is outside the scope of bargaining by statutory determination. One may not grieve the removal of a probationary employee. (The Agency cites Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F2d 724 D.C. Cir. 1983. See footnote 16.) Indeed, as the Agency notes in its Brief, “The Union apparently recognized this principle when it amended it [sic] grievance.” (Br. p. 2.)

It is also clear that the second version of the grievance is outside the scope of bargaining. As the FLRA stated in AFGE Local 2006 and Social Security Administration, 58 FLRA 297 (2003)—a case cited by the Agency:  

… [N]ot only are the merits of a probationary employee removal not subject to review in arbitration, but parties cannot provide procedural protections for probationary employees through the collective bargaining process. (At p. 298.)

In short, it appears that grievances that deal with the termination of a probationary employee and with the procedure surrounding such action are among the matters regarding such employees that are not subject to an arbitrator’s review.[21]

I am somewhat confused by the Union’s argument regarding arbitrability. The Union acknowledges that the grievance was submitted three times, but its argument appears to treat the remedy request presented in the second version of the grievance was, in essence, the same as the remedy request presented in the third. At the close of the discussion of timeliness that appears in its Brief on Arbitrability, the Union addressed the matter of Agency forfeiture and stated, “The resolution that the Union was seeking was whether or not the agency management was going to adhere to their contractual obligations”. This is  a paraphrase of the remedy requested in the third version; namely, “Clarification whether or not the Alaska VA violated the AFGE Master Agreement.”

The Union also states in its Brief that addresses the merits of the case that the issue is:   

Whether management violated the Master Agreement … by denying probationary employee (Estel Johnston) due process during her probationary period to correct any deficiencies in conduct and/or performance that may have affected here standing for conversion to career-conditional status. (Brief, Part 1 of 3, pages 1-2.)

This statement is a paraphrase of the position taken by Shop Steward Lolette Welch in her letter of April 23, 2004. Ms. Welch stated, “The Union is not grieving the removal of a Probationary employee but the process that was done and the violations to the Master Agreement”. She repeated this statement verbatim in her letter of May 12, 2004. A grievance addressing such an issue is not arbitrable.

I see a difference between a grievance that alleges (among other things) that provisions of a collective bargaining agreement were denied to a terminated employee and one that seeks to find out whether an agreement was violated when (in a certain instance) those provisions were not applied. The logical outcome of the first grievance (if successful) is a remedy that could include reinstatement. The logical outcome of the latter is an answer of “Yes” or “No”. In any case, it is clear that the Union saw a difference between the two since it modified the grievance from a claim that contractual processes were denied to one that merely sought a determination whether the Agency violated the Agreement when it did not apply certain provisions to the Grievant.

This may well be a distinction without a difference. Even assuming that the Union had argued the “Clarification” request before me, that such a statement of the Issue were found to be arbitrable, and the Union had prevailed on that question in arbitration, I cannot envision an effective remedy that would not intrude upon management rights.

In any case, the concern that appears to be behind the Union’s second and third remedy requests is its view that the Agency did not utilize those provisions in the Agreement that are designed to help erring employees correct their performance. However, the fact that a provision exists in a collective bargaining agreement does not mean that a grievance filed to enforce that provision will have access to that agreement’s grievance procedure or to arbitration. In the federal sector, Congress has determined that certain matters are excluded from negotiated grievance procedures.[22] Moreover, the parties to a collective bargaining agreement may decide to exclude certain contractual provisions from the grievance procedure.[23]

Thus, the fact that a collective bargaining agreement mandates (or, as here, merely “recommends”) certain procedures does not mean that alleged violations of the procedures will necessarily have access to that agreement’s grievance procedure or to arbitration.

Conclusion: The grievance is not arbitrable.


ARBITRATOR’S DETERMINATIONS

The grievance was timely.

The grievance addresses matters outside the scope of bargaining and is, therefore, not arbitrable.

The Agency’s request for dismissal is granted.

Respectfully submitted on this, the 24th day of January, 2005, by

Burton White
Arbitrator



[1] I use ellipses marks (…) within a quotation to indicate omission of a portion of a sentence; I use three asterisks (***) to indicate omission of words within two consecutive sentences as well as to indicate an omission of a passage consisting of one complete sentence or more.

[2] The Union Brief states, “Based on the agency 04/27/04 response, the Union subsequently resubmitted the grievance for a third time on 05/12/04 for a response to the matter identified in the Union’s 04/23/05 [sic] memorandum”. As I will discuss in more detail, the evidence indicates that the third—and final—submission took place on May 17, 2004

[3] “… [T]he Union subsequently resubmitted the Estel Johnston grievance for a third time …”. (Br. p. 2.)

[4] There are differences in the section headed “Statement of Complaint”; a section entitled, “FLRA case law” [sic] that was part of the first grievance does not appear in the second document; an entry had appeared in the first edition under the heading, “What other incidents, statements, or actions relate to the complaint and by whom”, but in the second exhibit, that section has been left blank.

[5] In 2004, April 22 fell on a Thursday.

[6] In 2004, May 19 fell on a Wednesday.

[7] The grievance alleges that the Memorandum was given to the Grievant at a meeting held on April 14, 2004, and notes that the Grievant’s probationary period was due to end on April 19, 2004. (Grievance,
page 1.)

[8] Although the typewritten date on the response is “Friday, April 22, 2004”, all indications are that the response was issued on April 23, 2004. In 2004, April 22 fell on a Thursday. The Agency’s date stamp indicates that the Union response was received on April 23. (In the copy provided to me by the Agency, a handwritten notation of “23” appears above the typed “22”. Since no such notation appears in the copy provided by the Union, I assume that the notation was made in the receiving office.)

[9] As noted above, the referenced attachment was not attached to the cover letter in the packets submitted to me and the parties did not identify which version of the grievance accompanied this letter. The  record suggests that it was the original grievance. The response from the Agency (Finding of Fact #5) supports this inference. See also the following footnote and accompanying text.

[10] I conclude that the second version of the grievance accompanied this letter. As noted above, it appears that in this edition the original request (reinstatement and back pay) was deleted and the notation “N/A” entered in its place. In short, no corrective action is stated in this version.

[11] This Agency memo appears to explain why the Union modified version two to create the “3rd Submission”. See preceding footnote.

[12] This Union response is dated Monday, May 19, 2004, but this appears to be an error. In 2004, May 19 fell on a Wednesday.

[13]In three places in page 2 of its Brief, the Union identifies action as happening in 2005. It is obvious that these entries are typographical errors.

[14] In my view, this was the event that gave rise to the grievance. The grievance form states that the date of the incident was April 14, 2004. However, I am of the view that the event that should be considered as having given rise to the grievance was the termination on April 16, not the notification that took place two days earlier.

Ernest C. Hadley tells us:

In order to begin the running of any time limitations for the filing of a grievance, the action taken by management must be definitive. An indication of what management might do in the future does not give an employee adequate notice to begin the running of the time period. In such a case, the grievant "could … reasonably believe that future discussion or conduct might change the situation …". Office of General Counsel, NLRB and National Labor Relations Board Union, Local 14, No. 78K25221, LAIRS 11887 (Cohen, 1979).

A Guide To Federal Sector Labor Arbitration, 2d ed. Arlington, Va., Dewey Publications, Inc., 1999, p. 48. (Hereinafter cited as “Hadley”.)

I note, in this regard, that the grievance form reports that at the meeting that took place on April 14, the Shop Steward requested related documentation. It also alleges that the documents were promised, but never provided.

[15] Hadley tells us:

Although the agency is not obligated to state its reasons for denying a grievance, it must indicate its reasons for rejecting and returning a grievance without action. If the agency believes the grievance is not arbitrable due to the fact that it lacks specificity, is not timely filed, or is substantively inappropriate, it must inform the union that it believes the grievance to be nonarbitrable and the reason for this belief. If the grievance is rejected for lack of specificity, the union must be given an opportunity to clarify the grievance and resubmit it. Department of the Army, Headquarters, XVIII Airborne Group, Fort Bragg and AFGE, Local 1770, No. 85K03993, LAIRS 16813 (Skelton, 1985).

A Guide To Federal Sector Labor Arbitration, 2d ed. Arlington, Va., Dewey Publications, Inc., 1999, p. 43.

[16] The Employer’s brief cites Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1984). In that case, the court stated (at p. 730):

Congress has long recognized both that federal employees are due certain procedural protections and that federal agencies must be able to terminate employees for unacceptable work performance or conduct. In accommodating these competing concerns, Congress created the concept of the probationary term and authorized agencies to terminate employees summarily during this period. It saw summary terminations as essential to an effective and efficient service, and it has repeatedly acted to preserve the agencies' discretion summarily to remove probationary employees. We detect no retreat from this position in the Civil Service Reform Act of 1978 or in the OPM regulations that implement the congressional mandate.

[17]Owen Fairweather informs us:

Arbitrators sometimes hold that an employer which fails to assert a timeliness defense at the preliminary stages of the grievance waives the right to assert the defense at the later stages.

Ray J. Schoonhaven, Editor in Chief, Fairweather’s Practice and Procedure in Labor Arbitration, 3rd ed., Washington: The Bureau of National Affairs, 1991, p. 87.

This type of waiver was cited by Arbitrator Joseph Gentile in a 1980 federal sector arbitration case:

Arbitrators have found a waiver under three closely related sets of specific circumstances: (1) both parties have been lax in the administration of the time requirements and the steps of the procedure, (2) either party was led to believe by the other (either directly or impliedly) that there was a waiver of the time restrictions by certain acts or deeds, such as not raising the timeliness issue from the start, engaging in regular dialogue with the affected parties about the underlying issues in dispute, not strictly adhering to other aspects of the grievance procedure or making representations that the matter in dispute would be corrected; or (3) the grievance was of a continuing nature.(Emphasis added.)

Navy Public Works Center, San Diego, CA and NAGE, Local 12–35, No. 071380, LAIRS 14421 (1980)

[18] One typical example (referenced by Hadley) is found in 29 CFR 1614.604 (d). That language reads:

The first day counted shall be the day after the event from which the time period begins to run and the last day of the period shall be included, unless it falls on a Saturday, Sunday or Federal holiday, in which case the period shall be extended to include the next business day.

Hadley takes care to note that not all arbitrators apply this practice when interpreting time limits in grievance procedures of collective bargaining agreements in the federal sector.

[19] As noted elsewhere in this document, the Union Brief identifies May 12, 2004, as the date on which the final version of the grievance was submitted. I note here that the Agency responded to that submission that very day. Under the Agreement, forfeiture applies when the Agency fails to meet the contractual time limits.

[20] How Arbitration Works provides an example of a continuing violation:

… [W]here the agreement provided for filing “within ten working days of the occurrence,” it was held that where employees were erroneously denied work, each day lost was to be considered an “occurrence” and that a grievance presented within  10 working days of any such day lost would be timely. (Citation omitted.)

Alan Miles Ruben, Editor-in-Chief, Elkouri and Elkouri: How Arbitration Works, 6th ed., Washington: ABA Section of Labor and Employment Law, The Bureau of National Affairs, 2003, p. 219.

[21] The following paragraph from A Guide to Federal Labor Relations Authority Law and Practice begins an extensive catalogue of the limitations:

It is now held that contractual coverage of the separation of a probationer is impermissible, as inconsistent with government-wide regulation. It is immaterial that justification is offered for a proposal relating to probationary separations as an appropriate procedure for those employees adversely affected by the exercise of management rights. NFFE Local 29 and Army Corps of Eng'rs, Kansas City Dist., 20 FLRA 788, 790B91 (1985). Even very modest protections are beyond the scope of negotiations, e.g., a proposal calling for five days' advance notice of termination. AFGE Council of Marine Corps Locals and Dept. of Navy, Marine Corps, 35 FLRA 1023, 1026 (1990); see NTEU and Dept. of Treasury, Customs Serv., 46 FLRA 696, 767 (1992) (finding advance notice and "informal meeting" requirements of Provision 34 to be nonnegotiable). The Authority has disapproved the negotiability of proposals that extend the negotiated grievance procedure to cover disputes over the procedural propriety of probationary terminations. Bremerton Metal Trades Council and Naval Supply Ctr. Puget Sound, 32 FLRA 643, 661B62 (1988). Also found nonnegotiable was a proposal allowing a grievance over the discriminatory termination of a probationer. NTEU and Dept. of Agric., Food and Nutrition Serv., 25 FLRA 1067, 1076B78 (1987); see Dept. of Agric., Food and Nutrition Serv. and NTEU, 28 FLRA 580, 582B83 (1987); AFGE Local 1409 and Army Adjutant Gen. Publications Ctr., 27 FLRA 869, 870 (1987). Food and Nutrition Serv., supra, was affirmed on appeal. In NTEU v. FLRA, 848 F.2d 1273, 1275 (D.C. Cir. 1988), the court held that to allow a discharged probationer to use an allegation of discrimination as a means of access to the grievance procedure, with the concomitant power of the arbitrator to award reinstatement, would substantially thwart Congress's intention to allow summary termination of probationary employees.

Broida, Peter. A Guide to Federal Labor Relations Authority Law and Practice, American Civil Service Law Series, Arlington, Va., Dewey Publications, Inc., 2004, p. 633.

[22] 5 USC 7121(c) states:

The preceding subsections of this section  shall not apply with respect to any grievance concerning -

(1) any claimed violation of subchapter III of chapter 73 ofthis title (relating to prohibited political activities);

(2) retirement, life insurance, or health insurance;

(3) a suspension or removal under section 7532 of this title;

(4) any examination, certification, or appointment; or

(5) the classification of any position which does not result in the reduction in grade or pay of an employee.

[23] As we are told in How Arbitration works, “In Steelworkers v. Warrior & Gulf Navigation Co., the [United States Supreme] Court stated that ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit’.” Alan Miles Ruben, Editor-in-Chief,  Elkouri and Elkouri: How Arbitration Works, 6th ed., Washington: ABA Section of Labor and Employment Law, The Bureau of National Affairs, 2003, p. 279.

That concept—relative to federal sector collective bargaining—is expressed in 5 USC (a)(2):

Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.

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