33:0028(3)AR - - SBA and AFGE, National Council of SBA Locals, Local 2532 - - 1988 FLRAdec AR - - v33 p28



[ v33 p28 ]
33:0028(3)AR
The decision of the Authority follows:


33 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. SMALL BUSINESS ADMINISTRATION

and

LOCAL 2532 OF NATIONAL COUNCIL

OF SMALL BUSINESS ADMINISTRATION

LOCALS OF THE AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL-CIO

0-AR-1507

DECISION

October 11, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Louis Aronin filed by the Union 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 filed an opposition.

The Arbitrator found that the grievant, a temporary clerk-typist employed for a period not to exceed 1 year, was not entitled to the procedures for termination for unacceptable performance outlined in the parties' agreement or Government-wide regulations. The Arbitrator also concluded that there was just and sufficient cause for the grievant's termination.

We conclude that the Union has not established that the award fails to draw its essence from the agreement or that it is contrary to law, rule or regulation. Therefore, the Union's exceptions are denied.

II. Background

The grievant was employed on January 12, 1987, as a Clerk-Typist, GS-3, for a period not to exceed 1 year. On or about January 23, 1987, her performance was determined to be unsatisfactory and a notice of termination was prepared. On January 28, 1987, the grievant accidentally learned that she was being terminated. On February 4, 1987, the grievant was terminated, effective February 14, 1987. The written reason given for her termination was that the project for which she was hired was completed. At about the same time of the notice of January 28, 1987, the grievant complained about sexual harassment by a contract custodial employee.

A grievance was filed alleging that the grievant was terminated in retaliation and harassment for bringing adverse working conditions to the attention of her supervisor.

The parties stipulated that the grievant did not receive a formal performance rating, formal performance standards, written warnings or a notice of proposed adverse action, and was not provided with a period to improve performance.

III. Arbitrator's Award

The issues before the Arbitrator were whether the grievant was terminated for just and sufficient cause, and whether her termination was procedurally flawed. The Arbitrator first addressed whether the procedures followed for the grievant's termination were appropriate, and then ruled on the merits of the grievance.

In deciding whether the procedures followed for the grievant's termination were appropriate, the Arbitrator found that "the crux of this controversy is whether the Grievant, as a temporary term limited employee, was covered by 5 U.S.C. 4303 and certain provisions of the parties' agreement and Memorandum of Agreement relating to the Performance Management and Appraisal System." Award at 24. According to the Arbitrator, if the grievant was covered by Chapter 43 and or the provisions relating to termination for performance reasons, the termination was invalid because none of the formal procedural requirements was satisfied.

The Arbitrator found that the parties did not dispute that: (1) the grievant was covered by the parties' agreement as a member of the unit of recognition, (2) the grievant was entitled to process the grievance regarding her termination under the negotiated grievance procedure, and (3) the Arbitrator possessed the authority to decide the matter. Award at 24-25.

The Arbitrator began his analysis by noting that the parties' agreement provided that the agreement is subject to "'existing and future laws and government-wide regulations.'" Award at 25. The Arbitrator found that the grievant was a term employee pursuant to 5 C.F.R. § 316.304. Award at 26-27. He also found that the grievant was not entitled to the procedures set forth in Chapter 43 of Title 5 of the U.S. Code. This conclusion was based on his interpretation of 5 C.F.R. § 315.804 and § 316.304. Award at 26-27. The Arbitrator concluded that a term employee is entitled to no more than a notice of termination with the date and the reason for the termination. Award at 27.

The Arbitrator also found that "in addition to the regulations excluding the Grievant from the statutory provisions for formal appraisals, etc., the parties' Agreement apparently does so by inference." Award at 28. For example, the Arbitrator noted that the parties' agreement's earliest requirement for appraisals was after 60 days. Thus, the Arbitrator concluded that the grievant was not entitled to receive an appraisal since she worked for the Agency for only 2 weeks. Award at 28-29.

In addition, the Arbitrator noted that to accept the Union's contention that the grievant was covered by 5 U.S.C. § 4301 et seq. and the parties' agreement would lead to the conclusion that she could not be terminated until she was rated. He reasoned that the first year of a career employee's employment is considered a probationary period and within this period the employee may be terminated at any time without recourse to the grievance procedure. The Arbitrator concluded that to find that a term employee is covered by the procedures of 5 U.S.C. § 4301 et seq. would result in greater rights for term [temporary] employees than for career employees during their probationary periods. Award at 29.

The Arbitrator also found that the grievant was not entitled to the counseling procedure set forth in Article 8 of the parties' agreement, nor to the notice provisions applicable to adverse actions in Article 39. Award at 29-30.

In reference to the merits of the grievance--whether there was just and sufficient cause for the grievant's termination--the Arbitrator found that the grievant (1) was aware of performance standards, (2) was advised of her assignments, and (3) failed to perform satisfactorily. Therefore, he found that the grievant's termination was fully supported by the evidence, and that there was just and sufficient cause for her termination.

The Arbitrator concluded that because the grievant was not covered by 5 U.S.C. § 4301 et seq. or the Memorandum of Agreement on Performance Management, the failure to provide the grievant formal performance standards, a formal performance appraisal, counseling, an improvement period, a notice of proposed adverse action, and an opportunity to reply did not constitute a violation of the parties' agreement or any statutory or regulatory rights. The Arbitrator also concluded that the failure to include conclusions as to the inadequacies of the grievant's performance in her termination notice is not a harmful error which prejudices the grievant or which invalidates the termination notice.

Finally, the Arbitrator found no merit in the grievant's contention that her termination was a reprisal for having reported sexual harassment.

IV. Positions of the Parties

A. The Union's Exceptions

The Union argues that the award does not draw its essence from the agreement, because the agreement "nowhere contains the exceptions he has grafted onto it." Union's Exceptions at 1. The Union also argues that the Arbitrator's decision is contrary to law.

The Union asserts that there is no basis for the Arbitrator's conclusion that the grievant was covered by the parties' collective bargaining agreement but was not protected by the provisions of the agreement concerning performance management. According to the Union, this conclusion is in conflict with the Memorandum of Agreement on Performance Management. The Union contends that the Arbitrator based his decision on the erroneous premise that the parties are prohibited from negotiating provisions covering temporary employees which exceed the provisions of 5 U.S.C. § 4303 and 5 C.F.R. § 315.

The Union argues that the Memorandum of Agreement on Performance Management provides mandatory requirements which must be followed before covered employees can be terminated for performance reasons. According to the Union, the Agency did not comply with these procedures when terminating the grievant. Therefore, the Union claims that the grievant's termination clearly was in violation of the parties' agreement, and that the Arbitrator's award, by not arriving at that conclusion, is in conflict with the agreement.

B. The Agency's Opposition

The Agency did not file exceptions to the Arbitrator's award. However, in its opposition to the Union's exceptions, the Agency contends that the Union's exceptions should be dismissed because the Authority lacks jurisdiction to consider those exceptions for two reasons.

The Agency argues first that the Arbitrator decided an issue that was not before him and, thus, exceeded his authority. Alternatively, the Agency argues that because the removal of a temporary limited employee for unacceptable performance arises under another personnel system and is a matter similar to matters covered under 5 U.S.C. § 4303 the Authority lacks jurisdiction under 5 C.F.R. § 2425.3(b)(3) to decide the merits of the case.

As to the merits of the Union's exceptions, the Agency claims that the removal of the grievant "was consistent with any requirements of its agreements with the Union and with other applicable guidance and law." Opposition at 2.

V. Analysis and Conclusion

A. The Authority has Jurisdiction to Decide This Case

In support of its claim that the Authority lacks jurisdiction to decide this case, the Agency argues that the portion of the Arbitrator's award concerning application of the Memorandum of Agreement on Performance Management involves a matter not processed through the negotiated grievance procedure or submitted to the Arbitrator. Consequently, the Agency claims that the Arbitrator had no authority to decide that issue. The Agency, therefore, requests that the Authority modify the portion of the Arbitrator's award which exceeded the Arbitrator's authority. The Agency contends that if the Arbitrator's award is so modified the Union's exception must be dismissed because the basis for the Union's exception will be eliminated. Opposition at 8-12.

In our view, this argument does not raise any issues as to the Authority's jurisdiction to decide this case. Rather, this argument constitutes an exception to the Arbitrator's award on the ground that the Arbitrator exceeded his authority. An exception to an arbitrator's award alleging that an arbitrator exceeded his authority raises a ground on which the Authority will review the arbitrator's award. However, the Authority's Rules and Regulations provide that the time limit for filing an exception to an arbitrator's award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). In this case, the Arbitrator's award was served on the parties by mail on January 27, 1988. Because the award was served by mail, 5 days are added to the time period pursuant to 5 C.F.R. § 2429.22. Therefore, any exception had to be filed with the Authority no later than March 1, 1988. The Agency's exception, included as a part of its opposition to the Union's exceptions, was not filed until March 21, 1988, and is untimely. Because the Agency's exception was untimely filed, the Agency's exception is dismissed. See Picatinny Arsenal, U.S. Army Armament Research and Development Command, Dover, New Jersey, and National Federation of Federal Employees, Local 1437, 7 FLRA 703, 703 n.2 (1982).

Accordingly, we find that the Agency's argument that the Arbitrator exceeded his authority does not provide a basis for finding that the Authority lacks jurisdiction to decide this case.

We turn now to the Agency's second argument in support of its claim that the Authority lacks jurisdiction in this case. The Agency argues that under 5 C.F.R. § 2425.3(b)(3) the Authority will not review an exception to an arbitrator's award which concerns matters similar to those matters covered under 5 U.S.C. § 4303 which arise under other personnel systems. According to the Agency, temporary limited employees have "such limited rights that they are not expressly covered under 5 U.S.C. § 4303 relating to actions based on unacceptable performance." Opposition at 13. Rather, the Agency argues such employees are covered by the Federal Personnel Manual (FPM), which provides that temporary limited employees "may be separated at any time upon notice in writing from an appointing officer." FPM Chapter 316, subchapter 4-2(3). Thus, the Agency contends that because the termination of the grievant for unacceptable performance is a matter which arises under another personnel system and is similar to matters covered by 5 U.S.C. § 4303, the Authority lacks jurisdiction to decide the case.

We find the Agency's arguments to be misplaced and that we have jurisdiction to decide this case. Section 7122(a) of the Statute provides as follows:

Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).

The matters described in section 7121(f) of the Statute include matters arising under other personnel systems--such as actions based on unacceptable performance--which are similar to actions based on unacceptable performance covered under 5 U.S.C. § 4303.

Section 7121(f) does not define the term "other personnel systems." The legislative history of the Statute, however, provides one specific example of "another personnel system." In explaining the meaning of the term "other personnel system" in section 7121(e), the Senate Governmental Affairs Committee used as an example the personnel system established by 38 U.S.C. §§ 4104-4119 for Department of Medicine and Surgery (DM&S) professional employees of the Veterans Administration (VA). S. Rep. No. 969, 95th Cong., 2d Sess. 110 (1978). See also Veterans Administration Medical Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984). In VAMC, Northport, the Court gave examples of the specific personnel system established by Congress for DM&S employees. These include: (1) qualifications for DM&S professionals are determined by the VA "without regard to civil service requirements," citing 38 U.S.C. §§ 4105(a), 4106(a); (2) DM&S employees have a different probationary period than other civil service employees, citing 38 U.S.C. § 4106(b); (3) DM&S employees' hours, conditions of employment and leaves of absence are determined by the Administrator of the VA "notwithstanding any law, Executive order or regulation," citing 38 U.S.C. § 4108(a); (4) DM&S employees are paid according to special grades and scales, citing 38 U.S.C. § 4107; and (5) DM&S employees charged with "inaptitude, inefficiency or misconduct" are judged by peer review boards whose decision is final, citing 38 U.S.C § 4110. 732 F.2d 1130 n.4, 1131.

Further, the Authority has found that the Defense Department Overseas Teachers Pay and Personnel Practices Act (the Act), 20 U.S.C. §§ 901-907, constitutes a "personnel system" within the meaning of section 7121(f). That Act applies to teachers in schools operated by the Department of Defense in an overseas area for dependents of members of the Armed Forces and dependents of civilian employees of the Department of Defense. Department of Defense Dependents Schools (DoDDS), Pacific Region and Overseas Education Association (OEA), 22 FLRA 597, 599 (1986)(DoDDS).

The Authority concluded in DoDDs that the Act established another personnel system because the purpose of the Act was "to no longer generally subject such teachers to civil service laws and regulations as the source of their personnel system and instead to have the Secretary of Defense prescribe and issue regulations to provide for a system of personnel administration." 22 FLRA at 600. The Authority noted that under 20 U.S.C. § 902(a), the regulations to be promulgated by the Secretary of Defense shall govern: (1) the establishment of teaching positions; (2) the fixing of basic compensation for teachers and teaching positions; (3) the entitlement of teachers to compensation; (4) the payment of compensation to teachers; (5) the appointment of teachers; (6) the conditions of employment of teachers; (7) the length of the school year; (8) the leave system for teachers; (9) quarters, allowances, and additional compensation for teachers; and (10) such other matters as may be relevant and appropriate to the purposes of Chapter 20. 22 FLRA at 600.

Each of the two personnel systems described above is established by statute and is intended to operate apart from the personnel system which is applicable to general Federal Civil Service employees and which is governed by title 5 of the United States Code. In this case, however, the Agency has failed to demonstrate that temporary employees in the Agency are covered by a personnel system different from that governed by title 5 of the United States Code.

The record indicates that the grievant occupied a competitive service position, albeit only for a period of time not to exceed 1 year. See Opposition at Exhibit 3. Employees, such as the grievant, who have temporary limited civil service appointments not to exceed 1 year have limited rights when terminated for cause. See FPM Chapter 316, subchapter 4-2(3) which provides that: "Temporary limited employees may be separated at any time upon notice in writing from an appointing officer." Further, employees appointed to positions for a period of time not to exceed 1 year may also be excluded from other personnel matters governed by title 5 of the United States Code, such as coverage under the Civil Service Retirement System, due to the limited length of their appointments. See 5 C.F.R. § 831.201(a)(1).

However, while temporary employees may be excluded from coverage under specified personnel matters governed by title 5 of the United States Code due to the limited length of their appointments, this fact does not establish that temporary employees are covered by another personnel system as that term is used in section 7121(f) of the Statute. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79 (1988) where we found that excepted service employees are not covered by "[an]other personnel system" within the meaning of section 7121(f) of the Statute even though such excepted service employees were excluded from coverage under 5 U.S.C. § 7511 relating to adverse actions.

In our view, temporary employees are not covered by "another personnel system" within the meaning of section 7121(f). Rather, like excepted service employees, temporary employees are a category of employees within the general Federal Civil Service who have some different rights and benefits due to the limited nature of their appointments. Therefore, we have jurisdiction to review the merits of this case.

B. The Award Draws its Essence from the Agreement

The Union asserts that the award does not draw its essence from the agreement. We disagree.

In order for an award to be found deficient because it does not draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See General Services Administration, Region 8 and American Federation of Government Employees, AFL-CIO, Council 236, 21 FLRA 405 (1986).

The Arbitrator found that the grievant was covered by the collective bargaining agreement. The Arbitrator found further that Article 2 of the parties' agreement provided "that the Agreement is subject to 'existing and future laws and government-wide regulations.'" Award at 25.

The Arbitrator first concluded that the grievant, as a term employee, was not entitled to the procedures set forth in 5 U.S.C. § 4303 or 5 C.F.R. § 315.804 and § 316.304. He found that, under law, she was entitled only to a notice of termination. The Arbitrator later examined the parties' agreement and Memorandum on Performance Management to determine if the grievant was entitled to any of the procedures enumerated there for terminations for unacceptable performance. He found that because of the short nature of her employment (2 weeks), the provisions of the agreement concerning performance evaluation did not apply to her.

Furthermore, as noted by the Agency, section 21g(2) of the Memorandum of Agreement on Performance Management specifically excludes temporary limited employees from coverage of the procedures to be followed when terminating employees. Agency's Opposition at 19-20. Thus, although the Arbitrator based his conclusion on other provisions of the agreement, his conclusion that the grievant was not entitled to the procedures enumerated in the agreement draws its essence from the agreement.

The Union's contentions simply disagree with the Arbitrator's conclusion that although the grievant was covered by the parties' agreement, she is not entitled to the procedural protection of the Memorandum of Agreement on Performance Management. Such contentions do not provide a basis for setting aside an Arbitrator's award since they constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement, his findings of fact, and his evaluation of the evidence and testimony. See Naval Supply Center, Charleston, S.C. and American Federation of Government Employees, Local No. 2510, 32 FLRA 696 (1988).

C. The Award is Consistent with Law

The Union also asserts that the award is contrary to law. The Union argues that the Arbitrator's findings, that the statutory provisions governing probationary employees must also apply to temporary employees and that the parties could not include provisions governing the removal of temporary employees in their agreement, are inconsistent with law as interpreted by the Authority. In support, the Union relies on National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 788 (1985) (U.S. Army Corps of Engineers).

The Arbitrator found that the grievant was a term employee pursuant to 5 C.F.R. § 316.304. Award at 26-27. He also found that the grievant was not entitled to the procedures set forth in Chapter 43 of Title 5. This conclusion was based on his interpretation of 5 C.F.R. § 315.804 and § 316.304. Award at 26-27. The Arbitrator concluded that according to applicable regulations a term employee is entitled to no more than a notice of termination with the date and the reason for the termination. Award at 27.

We find, in agreement with the Agency, that the Arbitrator erroneously characterized the grievant as a term employee rather than a temporary employee. According to the record, the grievant had a temporary limited appointment not to exceed 1 year. Temporary limited employees are employees hired for a period of 1 year or less. 5 C.F.R. § 316.401. Term employees are employees who may be hired for a limited period of 4 years or less. 5 C.F.R. § 316.301. Therefore, inasmuch as the grievant had a temporary limited appointment not to exceed 1 year, the grievant is a temporary rather than a term employee. The Arbitrator, therefore, erred in concluding that the grievant was a term employee. This error, however, is not material to the outcome of the case.

As previously noted, FPM Chapter 316, subchapter 4-2(3), provides that temporary limited employees may be separated at any time upon notice in writing from an appointing officer. Although the Arbitrator's analysis was based on regulations not applicable to the grievant, his conclusion that the grievant was only entitled to a notice of termination from an appointing official is equally applicable to temporary and term employees during the first year of employment. Consequently, we conclude that temporary employees, such as the grievant, can be terminated upon notice.

Contrary to the Union's argument, however, we find that the Union's reliance on U.S. Army Corps of Engineers is misplaced and that the award is consistent with law. In U.S. Army Corps of Engineers we held that proposals concerning the separation or termination of temporary employees is within the duty to bargain pursuant to section 7121 of the Statute. This dispute does not concern whether the parties may negotiate procedures concerning the separation of temporary employees for unacceptable performance. Rather, the dispute in this case concerns whether the negotiated procedures concerning the evaluation and disciplining of employees for unacceptable performance applied to the grievant. The Arbitrator found that these procedures did not apply to the grievant due to the temporary nature of the grievant's employment. Thus, the Union's exception constitutes disagreement with the Arbitrator's findings that although the grievant was covered by the parties' agreement, she was not entitled to the procedural protections of the Memorandum on Performance Management due to the short duration of her employment. Such contentions constitute an attempt to relitigate the merits of the case before the Authority, and disagreement with the Arbitrator's reasonings and conclusions based on the evidence before him. Such disagreement does not provide basis for finding an award deficient. See Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, Oklahoma City, Oklahoma, 30 FLRA 20 (1987).