Naval Plant Representative Office, Dallas, Texas and American Federation of Government Employees, Local Union 3548

 



[ v02 p308 ]
02:0308(38)AR
The decision of the Authority follows:


 2 FLRA No. 38
 
 NAVAL PLANT REPRESENTATIVE OFFICE,
 DALLAS, TEXAS
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL UNION 3548
 
                                            FLRC No. 78A-157
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER AROSE AS THE RESULT
 OF AN ANNOUNCEMENT POSTED BY THE NAVAL PLANT REPRESENTATIVE OFFICE (THE
 ACTIVITY) FOR A VACANCY IN A GRADE GS-12 POSITION.  THE GRIEVANT BID ON
 THE VACANCY AND HE WAS RATED AS HIGHLY QUALIFIED ALONG WITH THREE OTHER
 EMPLOYEES.  THE GRIEVANT FILED A GRIEVANCE WHEN HE WAS NOT SELECTED FOR
 THE POSITION.  AS PART OF HIS GRIEVANCE, THE GRIEVANT CLAIMED THAT THE
 SELECTION FOR THE POSITION HAD BEEN IMPROPER BECAUSE OF THE SELECTING
 OFFICIAL'S PARTIALITY IN FAVOR OF THE EMPLOYEE WHO WAS PROMOTED.  THE
 GRIEVANT ALLEGED THAT THE SELECTING OFFICIAL HAD SOLICITED AND ACCEPTED
 GRATUITIES AND FAVORS FROM THIS EMPLOYEE TO THE EXTENT THAT THE OFFICIAL
 COULD NOT MAKE A PROPER SELECTION.  THUS, THE GRIEVANT CLAIMED THAT HIS
 PROMOTIONAL OPPORTUNITIES HAD BEEN PREJUDICED BY THIS RELATIONSHIP
 BETWEEN THE SELECTING OFFICIAL AND THE SELECTED EMPLOYEE.  THE ACTIVITY
 FORMALLY INVESTIGATED THE GRIEVANT'S ALLEGATIONS AND EXONERATED FROM ANY
 MISCONDUCT BOTH THE SELECTING OFFICIAL AND THE EMPLOYEE SELECTED.
 THEREAFTER, THE GRIEVANT WAS REMOVED FROM THE FEDERAL SERVICE FOR
 "(K)NOWINGLY MAKING FALSE AND MALICIOUS STATEMENTS WITH INTENT TO HARM
 OR DESTROY THE REPUTATION OF OTHERS."
 
    THE GRIEVANCE DISPUTING THE SELECTION WAS ULTIMATELY SUBMITTED TO
 ARBITRATION WITH THE UNION REQUESTING THE ARBITRATOR TO FIND THAT THE
 ACTIVITY HAD VIOLATED THE PARTIES' NEGOTIATED AGREEMENT AND THE
 ACTIVITY'S MERIT PROMOTION PLAN IN ITS SELECTION FOR THE POSITION IN
 QUESTION.  THE UNION ALSO REQUESTED THE ARBITRATOR TO FIND THAT THE
 GRIEVANT WAS UNJUSTLY REMOVED FORM THE FEDERAL SERVICE.  IN THIS RESPECT
 THE ARBITRATOR RULED THAT THE CIVIL SERVICE COMMISSION WAS THE PROPER
 FORUM TO DISPUTE THE REMOVAL AND THAT HE WAS WITHOUT AUTHORITY TO RULE
 ON THE JUST CAUSE OF THE GRIEVANT'S REMOVAL.  HOWEVER, THE ARBITRATOR
 ALSO CONCLUDED THAT THERE WAS "NO DOUBT THAT THE REMOVAL OF THE GRIEVANT
 WAS DUE TO THE WORDS HE USED IN HIS WRITTEN GRIEVANCE, AND THERE IS
 LANGUAGE IN THE AGREEMENT AS WELL AS THE EXECUTIVE ORDER THAT GOVERNS
 THE RELATIONSHIP BETWEEN THE PARTIES WHEN AN EMPLOYEE FILES A
 GRIEVANCE." THUS, THE ARBITRATOR STATED THE ISSUES TO BE WHETHER THE
 ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT AND REGULATIONS IN ITS
 SELECTION AND WHETHER THE ACTIVITY VIOLATED THE AGREEMENT, THE ORDER, OR
 REGULATIONS IN ITS DISCIPLINE OF THE GRIEVANT FOR THE WORDS HE USED IN
 HIS WRITTEN GRIEVANCE.
 
                            ARBITRATOR'S AWARD
 
    WITH RESPECT TO THE FIRST ISSUE, THE ARBITRATOR DETERMINED THAT THE
 SELECTING OFFICIAL HAD THE RIGHT TO SELECT ANY NAME FROM THE HIGHLY
 QUALIFIED LIST AND CONCLUDED THAT THE ACTIVITY DID NOT VIOLATE THE
 AGREEMENT OR APPLICABLE REGULATIONS IN ITS SELECTION IN THIS CASE.  WITH
 RESPECT TO THE SECOND ISSUE, THE ARBITRATOR WAS OF THE OPINION THAT
 FEDERAL SECTOR ARBITRATION IS A CREATURE OF THE FEDERAL GOVERNMENT AND
 CONSEQUENTLY COMMUNICATIONS MADE IN THE COURSE OF A GRIEVANCE PROCEDURE
 ARE ABSOLUTELY PRIVILEGED.  ALTHOUGH THE ARBITRATOR FOUND ON THIS BASIS
 THAT THE ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT AND THE EXECUTIVE
 ORDER IN DISCIPLINING THE GRIEVANT FOR THE WORDS HE USED IN HIS WRITTEN
 GRIEVANCE, THE ARBITRATOR HELD THAT HE HAD NO AUTHORITY TO RULE ON
 WHETHER THE GRIEVANT SHOULD BE RETURNED TO HIS JOB SINCE THAT AUTHORITY
 IS RESERVED TO THE CIVIL SERVICE COMMISSION.
 
    THEREFORE, AS HIS AWARD THE ARBITRATOR FOUND AND ORDERED AS FOLLOWS:
 
    1.  THERE WAS NO SUBSTANTIAL AND MATERIAL VIOLATION OF THE AGREEMENT
 WHEN THE EMPLOYER
 
    SELECTED (THE EMPLOYEE THAT IT DID) FOR THE PROMOTION . . .
 
    2.  THE EMPLOYER VIOLATED THE AGREEMENT AND THE EXECUTIVE ORDER WHEN
 THE EMPLOYER REMOVED
 
    THE GRIEVANT FROM SERVICE FOR THE WORDS USED IN HIS GRIEVANCE.  THE
 EMPLOYER WILL IMMEDIATELY
 
    OFFER TO EXPUNGE THE GRIEVANT'S PERSONNEL FILE OF HIS REMOVAL.
 
                            APPEAL OF THE AWARD
 
    BOTH THE AGENCY AND THE UNION FILED PETITIONS FOR REVIEW OF THE
 ARBITRATOR'S AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE
 WAS PENDING BEFORE THE COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH
 SECTION 2400.5 OF THE TRANSITION RULES OF THE FEDERAL LABOR RELATIONS
 AUTHORITY (44 FED. REG. 44741) AND SECTION 7135(B) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE(92 STAT. 1215), THE RULES OF
 PROCEDURE OF THE COUNCIL, 5 C.F.R. PART 2411 (1978), REMAIN OPERATIVE
 WITH RESPECT TO THE PRESENT CASE, EXCEPT THAT THE WORD "AUTHORITY" IS
 SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH
 RULES.
 
    ON MAY 21, 1979, THE AUTHORITY DENIED THE UNION'S PETITION FOR REVIEW
 OF PARAGRAPH 1 OF THE ARBITRATOR'S AWARD BECAUSE THE PETITION FAILED TO
 MEET THE REQUIREMENTS OF SECTION 2411.32 OF THE AMENDED RULES FOR
 ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR REVIEW OF AN ARBITRATOR'S
 AWARD.  /1/ AT THE SAME TIME, PURSUANT TO SECTION 2411.32 OF THE AMENDED
 RULES, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR
 AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED THAT PARAGRAPH 2
 OF THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL.  /2/ NEITHER
 PARTY FILED A BRIEF.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT
 
    RELATIONS.
 
    AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
 FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED
 THAT PARAGRAPH 2 OF THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL
 MANUAL.  SINCE THE CIVIL SERVICE COMMISSION WAS RESPONSIBLE FOR
 PRESCRIBING REGULATIONS CONCERNING THE MATTERS INVOLVED IN THIS CASE,
 AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT /3/ THIS
 APPEAL MUST BE RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN
 ENACTED, THE AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT
 (THE SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO
 THE MATTERS INVOLVED HEREIN) AN INTERPRETATION OF CIVIL SERVICE
 COMMISSION REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD IN THIS
 CASE.  THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS
 FOLLOWS:
 
    THE GRIEVANT IN THIS CASE ALLEGED INITIALLY THAT THE AGENCY VIOLATED
 THE
 
    PARTIES' NEGOTIATED AGREEMENT BY PROMOTING AN EMPLOYEE OTHER THAN THE
 GRIEVANT WHEN FILLING A
 
    POSITION.  SPECIFICALLY, THE GRIEVANT ALLEGED THAT THE SELECTION WAS
 IMPROPER BECAUSE THE
 
    SELECTING OFFICIAL HAD ACCEPTED GRATUITIES AND FAVORS FROM THE
 EMPLOYEE WHO WAS SELECTED WHICH
 
    THEREBY UNFAIRLY INFLUENCED THE SELECTION PROCESS.  AFTER THE AGENCY
 CONDUCTED AN OFFICIAL
 
    INVESTIGATION WHICH FAILED TO DISCLOSE ANY CREDIBLE EVIDENCE TO
 SUPPORT THE CHARGES, THE
 
    AGENCY REMOVED THE GRIEVANT FOR "KNOWINGLY MAKING FALSE AND MALICIOUS
 STATEMENTS WITH INTENT
 
    TO HARM AND DESTROY THE REPUTATION OF OTHERS." WHEN THE GRIEVANCE WAS
 SUBMITTED TO
 
    ARBITRATION, THE UNION RAISED THE ADDITIONAL ISSUE CONCERNING THE
 GRIEVANT'S REMOVAL, AND
 
    SOUGHT TO HAVE THE ARBITRATOR FIND THAT THE GRIEVANT WAS REMOVED
 UNJUSTLY FROM THE FEDERAL
 
    SERVICE.  THE ARBITRATOR RULED THAT THE AGENCY DID NOT VIOLATE THE
 NEGOTIATED AGREEMENT IN
 
    FILLING THE POSITION FOR WHICH THE GRIEVANT APPLIED.  THE ARBITRATOR
 ACKNOWLEDGED THAT HE
 
    LACKED JURISDICTION TO CONSIDER THE MERITS OF THE GRIEVANT'S REMOVAL,
 BUT HE RULED THAT THE
 
    AGENCY VIOLATED THE NEGOTIATED AGREEMENT AND EXECUTIVE ORDER 11491,
 AS AMENDED, BY REMOVING
 
    THE GRIEVANT FOR REMARKS MADE DURING THE PROCESSING OF HIS GRIEVANCE.
  AS A REMEDY, HE ORDERED
 
    THE AGENCY TO "IMMEDIATELY OFFER TO EXPUNG (SIC) THE GRIEVANT'S
 PERSONNEL FILE OF HIS
 
    REMOVAL."
 
    TWO SUPPLEMENTS OF THE FEDERAL PERSONNEL MANUAL (FPM) AND AN FPM
 LETTER WHICH WERE IN
 
    EFFECT AT THE TIME OF THE PROMOTION ACTION AND OF THE ARBITRATOR'S
 AWARD ARE APPLICABLE TO
 
    THIS CASE.  FPM SUPPLEMENT 293-31 PRESCRIBES THE BASIC PERSONNEL
 RECORDS AND FILES SYSTEM FOR
 
    FEDERAL DEPARTMENTS AND EMPLOYEES.  SUBCHAPTER 55-5.3.A.  DESCRIBES
 THE OFFICIAL PERSONNEL
 
    FOLDER (OPF) AS THE OFFICIAL REPOSITORY OF THE RECORDS AND REPORTS OF
 PERSONNEL ACTIONS
 
    EFFECTED DURING AN EMPLOYEE'S FEDERAL SERVICE, TOGETHER WITH ALL
 RELATED DOCUMENTS AND
 
    PAPERS.  EXECUTIVE ORDER 10561 PROVIDES THAT THE OPF OF EACH EMPLOYEE
 SUBJECT TO CIVIL SERVICE
 
    RULES AND REGULATIONS, BOTH DURING FEDERAL EMPLOYMENT AND AFTER
 SEPARATION, SHALL BE PART OF
 
    THE RECORDS OF THE CIVIL SERVICE COMMISSION (OPM).
 
    SUBCHAPTER S5-5.7.A. OF FPM SUPPLEMENT 293-31 FURTHER REQUIRES THAT
 ALL PERMANENT RECORDS
 
    DESIGNATED BY OPM AS AFFECTING AN EMPLOYEE'S STATUS AND SERVICE BE
 FILED ON THE RIGHT SIDE OF
 
    THE OPF.  AGENCIES ARE PRECLUDED FROM DESIGNATING OTHER DOCUMENTS OR
 RECORDS FOR FILING ON THE
 
    RIGHT SIDE OF THE FOLDER WITHOUT THE PRIOR APPROVAL OF OPM.  ONE SUCH
 PERMANENT RECORD
 
    DESIGNATED BY OPM IN SUBCHAPTER S5-6.1.D. OF THIS SUPPLEMENT TO BE
 FILED ON THE RIGHT SIDE OF
 
    THE OPF IS THE STANDARD FORM (SF) 50, NOTIFICATION OF PERSONNEL
 ACTION (OR ITS EQUIVALENT)
 
    WHEN AN INDIVIDUAL IS SEPARATED FROM A POSITION.
 
    FPM SUPPLEMENT 296-31, BOOK V, TABLE 4 CONTAINS SPECIFIC INSTRUCTIONS
 REGARDING ENTRIES TO
 
    BE MADE ON THE SF-50 WHICH DOCUMENT THE NATURE OF A PERSONNEL ACTION.
  ACCORDING TO
 
    DOCUMENTATION INSTRUCTIONS IN EFFECT AT THE TIME OF THE EMPLOYEE'S
 REMOVAL (SUBTABLE
 
    11-2.M3.), A SEPARATION EFFECTED UNDER THE PROVISIONS OF PART 752B OF
 THE COMMISSION'S
 
    REGULATIONS WAS TO BE DOCUMENTED ON THE SF-50 OF THE EMPLOYEE'S OPF
 WITH THE PERSONNEL ACTION
 
    CODE "330" AND THE WORD "REMOVAL" IN THE BLOCK WHICH REFERS TO THE
 "NATURE OF
 
    ACTION." AGENCIES WERE FURTHER ADVISED TO PROVIDE IN THE "REMARKS"
 SECTION OF THE SF-50 A
 
    BRIEF DESCRIPTION OF THE NATURE AND EXTENT OF THE EMPLOYEE'S ACTIONS
 WHICH CAUSED THE
 
    SEPARATION.
 
    WHILE OPM MAINTAINS OWNERSHIP AND CONTROL OF ALL EMPLOYEE PERSONNEL
 FOLDERS, FPM LETTER
 
    296-33 DOES ALLOW AN AGENCY TO DELETE OR MODIFY AN SF-50 IN AN
 EMPLOYEE'S OPF UNDER CERTAIN
 
    SPECIFIED CONDITIONS.  THUS, AN AGENCY MAY CANCEL OR CORRECT AN
 EMPLOYEE'S SF-50 BASED UPON
 
    EITHER AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL AND
 DECISION THAT THE PERSONNEL
 
    ACTION INVOLVING REMOVAL WAS UNJUSTIFIED OR UNWARRANTED.  IN THE
 INSTANT CASE, THE GRIEVANT
 
    APPEALED HIS REMOVAL TO THE FEDERAL EMPLOYEE APPEALS AUTHORITY
 CONCURRENTLY WITH THE
 
    PROCESSING OF HIS GRIEVANCE.  WE HAVE BEEN ADVISED, HOWEVER, THAT THE
 AGENCY'S REMOVAL OF THE
 
    GRIEVANT WAS AFFIRMED IN A DECISION ISSUED ON FEBRUARY 22, 1979, BY
 THE MERIT SYSTEMS
 
    PROTECTION 0OARD.
 
    IN SUMMARY, IN THE ABSENCE OF AN ADMINISTRATIVE OR JUDICIAL
 DETERMINATION THAT THE
 
    GRIEVANT'S REMOVAL WAS UNWARRANTED OR
 
    UNJUSTIFIED, IMPLEMENTATION OF THE ARBITRATOR'S AWARD REQUIRING
 
    THE AGENCY TO EXPUNGE THE DOCUMENTATION OF THE GRIEVANT'S REMOVAL
 FROM HIS OPF WOULD VIOLATE
 
    BINDING COMMISSION DIRECTIVES.
 
    BASED ON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
 MANAGEMENT, WE CONCLUDE THAT PARAGRAPH 2 OF THE ARBITRATOR'S AWARD,
 WHICH ORDERS THE AGENCY TO EXPUNGE THE GRIEVANT'S PERSONNEL FILE OF HIS
 REMOVAL, IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL AND THEREFORE MAY
 NOT BE IMPLEMENTED.  /4/
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2411.37(B) OF THE
 RULES OF PROCEDURE, WE MODIFY THE ARBITRATOR'S AWARD BY STRIKING THE
 LAST SENTENCE OF PARAGRAPH 2 OF THE AWARD.  AS SO MODIFIED, THE AWARD IS
 SUSTAINED AND THE STAY IS VACATED.  /5/
 
    ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ NAVAL PLANT REPRESENTATIVE OFFICE, DALLAS, TEXAS AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 3548 (SCHEDLER,
 ARBITRATOR), FLRC NO. 78A=157, 1 FLRA NO. 41 (MAY 21, 1979), REPORT NO.
 6.
 
    /2/ THE AGENCY REQUESTED AND THE AUTHORITY GRANTED, PURSUANT TO
 SECTION 2411.47(F) OF THE AMENDED RULES OF PROCEDURE, A STAY OF THE
 AWARD PENDING DETERMINATION OF THE APPEAL.
 
    /3/ THE CIVIL SERVICE REFORM ACT OF 1978, PUBL L. NO. 95-454, SEC.
 902(B), 92 STAT. 1224, PROVIDES:
 
    (B) NO PROVISION OF THIS ACT SHALL AFFECT ANY ADMINISTRATIVE
 PROCEEDINGS PENDING AT THE
 
    TIME SUCH PROVISION TAKES EFFECT.  ORDERS SHALL BE ISSUED IN SUCH
 PROCEEDINGS AND APPEALS
 
    SHALL BE TAKEN THEREFROM AS IF THIS ACT HAD NOT BEEN ENACTED.
 
    /4/ IN ARRIVING AT THIS CONCLUSION THE AUTHORITY DOES NOT PASS UPON,
 OR IN ANY MANNER ADOPT, THE ARBITRATOR'S CONCLUSION IN PARAGRAPH 2 OF
 HIS AWARD WITH RESPECT TO THE EXECUTIVE ORDER.
 
    /5/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVI