32:0739(106)AR - - Information Agency and AFGE Local 1812 - - 1988 FLRAdec AR - - v32 p739



[ v32 p739 ]
32:0739(106)AR
The decision of the Authority follows:


32 FLRA No. 106

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

UNITED STATES INFORMATION AGENCY
Agency

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1812
Union

Case No. 0-AR-1481

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Roger P. Kaplan. The grievance concerned the Agency's decision to disallow the temporary overseas assignment of the grievant as an exhibit guide at an Agency-sponsored exhibit within the Soviet Union. The sole issue stipulated by the parties to the Arbitrator was whether or not the grievance was grievable and arbitrable. The Arbitrator determined that the grievance was grievable and arbitrable.

The Agency filed an exception under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency contends that the award is contrary to law and the parties' collective bargaining agreement. The Union filed an opposition.

We conclude that the Agency's exception is not interlocutory. We also conclude that although the Arbitrator may not review the merits of the Agency's security-clearance determination, the Agency fails to establish that the award is contrary to law or contrary to the collective bargaining agreement. Accordingly, we deny the exception.(1)

II. Background and Arbitrator's Award

This case concerns the grievant's application for a temporary assignment as an exhibit guide for an Agency-sponsored exhibit touring the Soviet Union. One of the qualification requirements for assignment to the position was a security clearance. The grievant is a radio broadcaster for an activity of the Agency and holds a security clearance. However, the Agency's Office of Security disapproved the grievant's assignment as an exhibit guide. As a result, the grievant's candidacy for the assignment was terminated.

The grievant filed a grievance contesting the termination of his candidacy. The Agency denied the grievance stating, in part, that the grievance was not grievable.

The grievance was submitted to arbitration on the following stipulated issue:

Is the Agency decision to disallow the temporary overseas assignment of . . . the Grievant, as an Exhibit Guide at an Agency-sponsored exhibit within the Soviet Union a grievable matter under the terms of the Collective Bargaining Agreement?

The Arbitrator ruled that the grievance was grievable and arbitrable and should proceed to a hearing on the merits. The Arbitrator noted that the parties' collective bargaining agreement provides for a broad scope grievance procedure and encompasses grievances concerning conditions of employment which are subject to the control of the Agency. The Arbitrator found that the decision denying the grievant an opportunity for the temporary assignment was subject to the control of the Agency.

The Arbitrator also noted that the agreement encompassed grievances concerning a prohibited personnel practice or a claimed violation, misinterpretation, or misapplication of law, rule, or regulation. The Arbitrator concluded that the grievance was encompassed by the agreement because it alleged that the Agency had violated Executive Order 10450, relating to national security determinations, and had committed prohibited personnel practices under 5 U.S.C. § 2302(b). He further concluded that the matter raised by the grievance was not excluded by the parties from the coverage of the negotiated grievance procedure. The Arbitrator emphasized that he was not determining whether the claims are meritorious.

The Arbitrator determined that the matter presented by the grievance was grievable and arbitrable.

III. Positions of the Parties

A. Agency's Exception

The Agency maintains that the award is a final decision on the sole question submitted by the parties: whether the grievance is grievable. Therefore, the Agency argues that its exception is not interlocutory and should be resolved by the Authority.

The Agency contends that by finding the grievance to be grievable and arbitrable, the award is contrary to law and the collective bargaining agreement in several respects.

First, the Agency contends that the award conflicts with section 7103(a)(14) of the Statute. The Agency argues that the award conflicts with the statutory definition of "conditions of employment" set forth in section 7103(a)(14). The Agency maintains that under section 7103(a)(14), the grievance does not concern the grievant's conditions of employment because (1) no adverse action was taken against the grievant; (2) security approval for assignment to the Soviet Union is not a condition of employment of the grievant's current position; (3) selection for assignment to duties outside his broadcaster position is not a condition of the grievant's employment; and (4) a temporary appointment to a position other than his current position is not a condition of the grievant's employment.

Second, the Agency argues that the grievance concerns an appointment to a position. Therefore, the Agency maintains that the grievance is excluded from the scope and coverage of the negotiated grievance procedure by section 7121(c)(4) of the Statute and the corresponding provision of the agreement which preclude grievances concerning an "appointment." The Agency maintains that by finding the grievance to be grievable and arbitrable, the award is contrary to the Statute and the collective bargaining agreement.

Third, the Agency contends that the award is contrary to section 7106(a) of the Statute. The Agency argues that arbitration of its decision to disallow the assignment of the grievant would interfere with its rights to determine its internal security practices, to assign employees to positions, and to assign work. The Agency argues that the grievant has not (1) claimed any violation of the collective bargaining agreement; (2) suffered any adverse action; or (3) claimed any violation of a law, rule, or regulation which applies to the grievance. Therefore, the Agency contends that arbitration of the grievance would directly interfere with the exercise of its management rights to disallow the assignment.

Fourth, Agency contends that the award is deficient because the Arbitrator based his award on claimed violations of law, rule, or regulation which do not apply to the grievance. The Agency argues that Executive Order 10450, which relates to national security investigations and determinations, is not relevant to the grievance. Therefore, the Agency asserts that the claimed violation of Executive Order 10450 cannot provide a basis for finding the grievance to be grievable and arbitrable. The Agency also argues that the mere allegation of the commission of a prohibited personnel practice cannot provide a basis for finding the grievance to be grievable and arbitrable.

Fifth and finally, the Agency contends that the award is deficient because the sole dispute is over the Agency's security decision. The Agency maintains that although the U.S. Court of Appeals for the Federal Circuit in Egan v. Department of the Navy, 802 F.2d 1563 (Fed. Cir. 1986), reversed 108 S. Ct. 818 (1988)(2), held that the Merit Systems Protection Board (MSPB) had authority to review the agency's reasons for denying a security clearance which leads to the removal of the employee, the court also held that the MSPB could not substitute its judgment for that of the agency on which employees are security risks. The Agency argues that arbitration of the grievance would enable an arbitrator to substitute his or her judgment on the security decision for that of the Agency. Therefore, the Agency maintains that the grievance is not be grievable and arbitrable.

B. Union's Opposition

The Union first contends that the exception is interlocutory and should be dismissed. The Union argues that the parties originally agreed that if the Arbitrator found the grievance to be grievable and arbitrable, the matter would proceed to the merits. The Union maintains that the hearing on the merits has not been held because the Agency has objected to the proceeding to which it previously agreed. The Union also maintains that the merits of the grievant's allegations were before the Arbitrator and as part of his award, he directed that the matter should proceed to a hearing on the merits. Consequently, the Union asserts that like the ruling in Department of the Army, Oakland Army Base and American Federation of Government Employees, Local 1157, 16 FLRA 829 (1984), the award is interlocutory. The Union further asserts that this case is not "exceptional" and that the Authority's general rule against considering interlocutory appeals applies. Opposition at 1.

If the Agency's exception is not considered to be interlocutory, the Union contends that the exception provides no basis for finding the award deficient. The Union argues that (1) the grievance concerns the grievant's conditions of employment; (2) a grievance which involves the exercise of a management right is grievable and arbitrable; (3) the grievance concerns an assignment and not an appointment; (4) an allegation of a violation of any law, rule, or regulation is sufficient to make a matter grievable and arbitrable; and (5) the decision of the U.S. Court of Appeals for the Federal Circuit in Egan v. Department of the Navy does not preclude the grievance.

IV. Analysis and Conclusions

A. The Agency's exception is not interlocutory.

We conclude that the Agency's exception is not interlocutory. The parties' stipulated the following issue for resolution by the Arbitrator:

Is the Agency decision to disallow the temporary overseas assignment of . . . the Grievant, as an Exhibit Guide at an Agency-sponsored exhibit within the Soviet Union a grievable matter under the terms of the Collective Bargaining Agreement?

The Arbitrator's award resolves the issue stipulated by the parties. The award constitutes a final decision on the only issue submitted by the parties for resolution by the Arbitrator. The Arbitrator's award disposes of the entire matter that was submitted to him by the stipulation.

The Arbitrator resolved the only issue submitted to him by the parties. Therefore, this case is distinguishable from Oakland Army Base, 16 FLRA 829, and Defense Mapping Agency, Hydrographic/Topographic Center, Providence Field Office and American Federation of Government Employees, AFL-CIO, Local 1884, 4 FLRA 66 (1980). In those cases, the exceptions to the arbitrators' findings that the grievances were grievable and arbitrable were dismissed as interlocutory. In both cases, the issues before the arbitrators encompassed both the grievability of the issues and the merits of the disputes.

We reject the Union's contention that the award should be found interlocutory because the parties originally agreed that the matter would proceed to the merits if the Arbitrator found that the grievance was grievable and arbitrable. That understanding is not reflected in the issue stipulated. The stipulated issue concerned solely the issue of grievability. That issue has been finally and completely determined. Accordingly, we will resolve the Agency's exception to the award.

B. The award is not deficient.

We conclude that the Agency fails to establish that the award is contrary to law or the collective bargaining agreement. We find that the grievance over the Agency's decision to disallow the temporary assignment of the grievant (1) is not precluded by the U.S. Supreme Court's decision in Department of the Navy v. Egan; (2) constitutes a "grievance" within the meaning of section 7103(a)(9) of the Statute; (3) is not excluded from the scope and coverage of the negotiated grievance procedure by section 7121(c)(4) of the Statute or the corresponding provision of the parties' agreement; and (4) is not precluded by section 7106(a) of the Statute.

1. The grievance is not precluded by Department of the Navy v. Egan.

We conclude that the award does not conflict with the U.S. Supreme Court's decision in Department of the Navy v. Egan. In our view, Egan does not preclude arbitration of the grievance over the Agency's decision to disallow the temporary assignment of the grievant.

In Egan, 108 S. Ct. 818 (1988), the Court held that the MSPB did not have authority to review the substance of the underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action. The Court did not decide that the MSPB was deprived of jurisdiction over an appeal by an employee of his or her removal when a security clearance required for employment is denied or revoked. Instead, the Court decided that the MSPB was precluded from reviewing the merits of the security- clearance determination. 108 S. Ct. at 825. The Court acknowledged, however, that the MSPB was authorized to confirm that the security clearance is required and was denied or revoked and to review whether required procedural protections were satisfactorily provided. Id. at 823, 825-26. These protections would include (1) notice of the denial or revocation; (2) a statement of the reason or reasons on which the negative decision was based; and (3) an opportunity to respond. See Egan v. Department of the Navy, 28 MSPR 509, 519 (1985).

Consistent with the Court's decision in Egan, the Arbitrator may not review the merits of the Agency's security-clearance determination. The Arbitrator may, however, determine other issues in the grievance which do not necessitate a review of the security-clearance determination. Like the MSPB in Egan, the Arbitrator may confirm that a security clearance is required for the temporary assignment, may determine that the clearance was denied, and may review whether any required procedural protections were provided. In addition, the Arbitrator may decide any other issues which do not depend on a review of the merits of the security-clearance determination.

In responding to the grievance, the Agency stated that "absent your showing of prohibited personnel practices or procedural error, . . . your complaint is not grievable[.]" As we discuss in more detail in section B(2) of this decision, a finding that a matter is grievable does not depend on whether there is merit to the complaint. Whether or not the complaint is meritorious is determined after a hearing on the merits. As we recognized in General Services Administration and American Federation of Government Employees, AFL-CIO, National Council 236, 27 FLRA 3, 9-10 (1987), the fact that an arbitrator's resolution of the merits of a dispute is subject to legal restrictions does not make the grievance nongrievable.

Accordingly, although the Arbitrator may not review the merits of the Agency's security-clearance determination, the Court's decision in Egan does not preclude the Arbitrator from considering other issues which do not relate to the merits of the security-clearance determination. Therefore, we reject the Agency's argument that the grievance is precluded by the Egan decision.

2. The complaint over the Agency's decision constitutes a grievance.

The term "grievance" is defined in section 7103(a)(9) of the Statute as any complaint:

(A) by any employee concerning any matter relating to the employment of the employee;

(B) by any labor organization concerning any matter relating to the employment of any employee; or

(C) by any employee, labor organization, or agency concerning--

(i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or

(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment[.}

The matters identified in section 7121(c) of the Statute are excluded from the scope of the grievance procedure prescribed by the Statute. In addition, under section 7121(a)(2), the parties may agree to exclude any matter from the coverage of the grievance procedure.

The wording of these provisions reflects Congressional intent that "{a}ll matters that under the provisions of law could be submitted to the grievance procedures shall in fact be within the scope of any grievance procedure negotiated by the parties unless the parties agree as part of the collective bargaining process that certain matters shall not be covered by the grievance procedures." Joint Explanatory Statement of the Committee on Conference, H.R. Rep. No. 95-1717, 95th Cong. 2d Sess. 157 (1978), U.S. Code Cong. & Admin. News 1978, 2723, 2891. It is also clear from the wording of section 7103(a)(9) that the definition of the term "grievance" is broad. Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 626-27 (1987).

The grievance in this case alleged that the Agency's decision to disallow the temporary assignment of the grievant violated Executive Order 10450. In addition, the grievance alleged that the decision was a reprisal for the grievant's exercise of his Constitutional rights and was based on conduct that had no connection with the grievant's ability to perform the assignment. 5 U.S.C. § 2302(b)(10) makes it a prohibited personnel practice to discriminate against any employee on the basis of conduct which does not adversely affect the employee's performance. 5 U.S.C. § 2302(b)(11) makes it a prohibited personnel practice to fail to take a personnel action when that failure violates any law, rule, or regulation implementing or directing concerning merit system principles. Thus, the grievance claimed that the Agency had committed prohibited personnel practices under 5 U.S.C. § 2302(b)(10) and (11).

We reject the Agency's argument that in order to be grievable, the grievance must allege something more than these prohibited personnel practices. We also reject the Agency's argument that the issue of whether the laws, rules, or regulations alleged to be violated apply must be determined before a matter is found to be grievable and arbitrable. In view of the definition of grievance, nothing more than a claimed or alleged violation of any law, rule, or regulation is necessary to constitute a grievance within the meaning of section 7103(a)(9). See Newark Air Force Station, 30 FLRA at 626-27.

We also reject the Agency's argument that the award conflicts with section 7103(a)(14) because the grievance does not concern the grievant's conditions of employment. In Local R-1-185, National Association of Government Employees and The Adjutant General of the State of Connecticut, 25 FLRA 509, 511 (1987), we specifically found that when an agency announces a position vacancy and seeks applications from qualified employees, a grievance alleging a violation of an agency regulation in the selection process is a "grievance" within the meaning of section 7103(a)(9). We similarly find in this case that the grievance over the Agency's decision to disallow the temporary assignment of the grievant concerns personnel matters affecting working conditions. Consequently, the grievance alleging that the decision to disallow the assignment of the grievant violated law, rule, and regulation is a grievance within the meaning of section 7103(a)(9).

3. The grievance is not excluded from the coverage of the negotiated grievance procedure.

The Agency fails to establish that the grievance concerns an "appointment" within the meaning of section 7121(c)(4) of the Statute and its corresponding provision in the parties' agreement. Nothing in the legislative history of the Statute indicates that Congress intended the term "appointment" to preclude grievances by employees over the selection process for a temporary assignment. The general usage of the term "appointment" refers to the action which takes place at the time an individual is initially hired into the Federal Service. See FPM ch. 315, subch. 8 and ch. 332, subch. 4.

In the instant case, the grievance concerns a temporary assignment of a current employee. It does not concern an appointment. Therefore, the award is not contrary to section 7121(c)(4). See National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO and United States Department of Labor, 4 FLRA 376, 381 (1980).

4. The grievance award is not precluded by section 7106(a) of the Statute.

We conclude that the award is not contrary to section 7016(a) of the Statute. This argument fails to distinguish between an arbitrator's decision as to the arbitrability of a grievance and an arbitrator's decision resolving the substantive issue presented by a grievance.

In Newark Air Force Station, 30 FLRA at 634, we held:

The proper phase of the arbitration proceeding in which to determine the impact or application of section 7106 is not at the outset so as to preclude by law an arbitrator from having jurisdiction over the matter. Rather, the determination as to the impact or application of section 7106 is to be made in connection with the arbitrator's consideration of the substantive issue presented by the grievance and any possible remedy. {Citation omitted.}

See also Marine Corps Logistics Support Base, Pacific, Barstow, California and American Federation of Government Employees, AFL-CIO, Local 1482, 3 FLRA 397 (1980) (nothing in section 7106 precludes an arbitrator from reaching the merits of a grievance alleging violations of provisions of the collective bargaining agreement).

The Arbitrator's determination that the grievance in this case is grievable and arbitrable is not in any way inconsistent with section 7106 of the Statute. See Newark Air Force Station, 30 FLRA at 634. There is no effect on the rights reserved to management as a result of a decision permitting an arbitrator to reach the merits of the grievance alleging that management has violated specified laws, rules, and regulations.

V. Decision

We deny the Agency's exception because no basis is provided for finding the award contrary to law or the collective bargaining agreement. We emphasize, as did the Arbitrator, that this award found only that the matter involved was grievable and arbitrable. The award did not resolve the merits of the grievance, and we decide only that the merits should be resolved. Consiste