35:1140(125)AR - - Panama Canal Commission and International Association of Firefighters, Local 13, Balboa, Republic of Panama - - 1990 FLRAdec AR - - v35 p1140



[ v35 p1140 ]
35:1140(125)AR
The decision of the Authority follows:


35 FLRA No. 125

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PANAMA CANAL COMMISSION

(Agency)

and

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS

LOCAL 13

BALBOA, REPUBLIC OF PANAMA

(Union)

O-AR-1673

DECISION

May 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Marvin A. Griffin 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 to the Union's exception.

The grievant was suspended for 30 days for damaging Government property through malicious action. A grievance was filed over the suspension and submitted to arbitration. The Arbitrator found that the grievant maliciously damaged Government property and that the 30-day suspension was a proper penalty. Accordingly, the Arbitrator denied the grievance.

In National Labor Relations Board and National Labor Relations Board Professional Association, 35 FLRA No. 123 (1990), we held that nonpreference-eligible, excepted service employees are precluded by law from challenging, through a negotiated grievance procedure, an adverse action set forth in 5 U.S.C. § 7512, which includes suspensions for more than 14 days. Because we find that the grievant is a nonpreference-eligible, excepted service employee, we conclude that the Arbitrator was precluded by law from resolving the grievance over the grievant's 30-day suspension. Accordingly, we will set aside the award.

II. Background and Arbitrator's Award

The grievant is a citizen of the Republic of Panama and is employed by the Agency as a firefighter. The grievant was charged with maliciously damaging Government property, specified as a sofa and two chairs, and repeated intentional misstatements or concealment of material facts in an investigation. The charge of misstatements or concealment of material facts was withdrawn and the grievant was suspended for 30 days for damaging Government property through malicious action. A grievance was filed over the suspension and submitted to arbitration.

The parties stipulated the issues to be as follows: (1) whether the grievant was responsible for maliciously damaging Government property; (2) whether evidence against the grievant was obtained by threats or duress; and (3) whether it was just and proper to suspend the grievant for 30 days.

The Arbitrator concluded that the grievant was responsible for maliciously damaging Government property. The Arbitrator noted that management witnesses had testified that the Agency had dropped the malicious damage charge concerning the two chairs and was limiting the charge to the sofa. However, on the basis of the evidence presented, the Arbitrator determined that the grievant would still have been suspended for 30 days even if he had not been charged with the destruction of the two chairs. The Arbitrator stated that the dropping of the charge concerning the chairs did not alter the fact that the chairs were also maliciously damaged and that the earlier withdrawal of the charge concerning misstatements or concealment of facts did not mean that the grievant had not committed the offense.

The Arbitrator also concluded that no evidence against the grievant was obtained by duress or threats and that, in view of the grievant's malicious damage of Government property and the Agency's table of penalties, the 30-day suspension was a proper penalty. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator exceeded his authority by basing his award on issues that were not submitted to him. The Union argues that by finding the grievant guilty of an offense that was dropped by the Agency and an offense with which he was not charged, the award is deficient.

The Union maintains that at arbitration the Agency abandoned its charge that the grievant damaged the two chairs and limited its charge to the sofa. The Union argues that the Arbitrator's continued attribution to the grievant of the malicious damage to the chairs invalidates the award. The Union also maintains that the charge against the grievant of misstatements and concealment of material facts had been withdrawn by the Agency and the suspension was based on the malicious damage charge alone. The Union argues that the Arbitrator consequently exceeded his authority by finding that the grievant was guilty of intentional misstatements and concealment of material facts.

B. The Agency

The Agency first asserts that although the award relates to a 30-day suspension, the Authority has jurisdiction to resolve the exception.

The Agency explains that the Panama Canal Commission is an Executive agency as defined in 5 U.S.C. § 105 and that Agency employees are employees as defined in 5 U.S.C. § 2105(a). The Agency further explains that under 22 U.S.C. § 3642, the Panama Canal Commission may appoint personnel without regard to the competitive service requirements pertaining to appointment and that, consequently, under 5 U.S.C. §§ 2102-2103, Panama Canal Commission positions and employees are in the excepted service.

In this case, the Agency maintains that the 30-day suspension of the grievant is not a matter described in section 7121(f) of the Statute over which the Authority would not have jurisdiction because the matter is not covered by 5 U.S.C. § 7512 and did not arise under another personnel system. The Agency asserts that the matter is not covered by 5 U.S.C. § 7512 because the grievant is not an employee as defined in 5 U.S.C. § 7511. The Agency states that the grievant is not a preference-eligible employee. The Agency cites Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79 (1988), and asserts that Panama Canal Commission employees are excepted service employees within the general Federal civil service and, therefore, are not covered by another personnel system.

Addressing the Union's exception, the Agency contends that the exception fails to establish that the Arbitrator exceeded his authority. The Agency argues that the Union mistakenly claims that the Arbitrator found the grievant guilty of damaging the two chairs and misstating or concealing material facts. The Agency maintains that although the Arbitrator found that the two chairs were damaged, the Arbitrator clearly did not state that the grievant was responsible. The Agency also maintains that the Arbitrator never stated that the grievant misstated or concealed material facts. The Agency claims that the Arbitrator merely stated a truism: the withdrawal of the charge did not mean that the grievant did not commit the offense.

IV. Analysis and Conclusions

A. The Award Does Not Relate to a Matter Described in Section 7121(f)

Under section 7122(a) of the Statute, exceptions may not be filed with the Authority to an arbitration award relating to a matter described in section 7121(f). The matters described in section 7121(f) include adverse actions covered under 5 U.S.C. chapter 75, subchapter II and similar matters that arise under another personnel system. To be an adverse action covered under chapter 75, subchapter II, the action must be covered under 5 U.S.C. § 7512 and must have been taken against an employee as defined in 5 U.S.C. § 7511.

The Agency states that Panama Canal Commission employees are in the excepted service and that the grievant is not a preference-eligible employee. Agency's Opposition at 4. The statement is not controverted by the Union. In addition, the Arbitrator stated that the grievant is a citizen of the Republic of Panama. As a foreign national, it is likely that the grievant is not a preference-eligible employee. Therefore, based on the record in this case, we conclude that the grievant is a nonpreference-eligible, excepted service employee. As such, the grievant is not an employee within the meaning of 5 U.S.C. § 7511. Because the grievant is not an employee within the meaning of 5 U.S.C. § 7511, his 30-day suspension was not an adverse action covered under 5 U.S.C. chapter 75, subchapter II. Moreover, as an excepted service employee within the general Federal civil service, the grievant's suspension did not arise in another personnel system. See Department of Health and Human Services, Social Security Administration, 32 FLRA at 85-86. Therefore, the award does not relate to a matter described in section 7121(f) of the Statute, and the Union's exception to the award was properly filed with the Authority under section 7122(a) of the Statute.

B. The Award is Contrary to Law

Although we decide that we have jurisdiction to resolve the exception, we conclude that the Arbitrator did not have jurisdiction to resolve the grievance.

In a number of cases, the Authority held that adverse actions and actions based on unacceptable performance involving nonpreference-eligible, excepted service employees are within the scope of the negotiated grievance procedure prescribed by the Statute.(1) That position has been rejected by both of the U.S. courts of appeals that have considered it.(2) In National Labor Relations Board and National Labor Relations Board Professional Association, 35 FLRA No. 123 (1990), we reexamined the Authority's position. Based on the rationale and conclusions of the U.S. courts of appeals in reversing the position of the Authority, we held that nonpreference-eligible, excepted service employees are precluded by law from challenging an adverse action set forth in 5 U.S.C. § 7512 or an action based on unacceptable performance set forth in 5 U.S.C. § 4303 through a negotiated grievance procedure. In so holding, we stated that we did not address whether such employees are precluded from filing grievances concerning these matters when they involve alleged interference with protected union activities under the Statute or alleged unlawful employment discrimination. In this case, however, we note that there are no such allegations.

Because the grievant in this case is a nonpreference-eligible, excepted service employee and a 30-day suspension is an adverse action covered by 5 U.S.C. § 7512, the grievance contesting the 30-day suspension was precluded as a matter of law from coverage under the negotiated grievance procedure. Consequently, the grievance was not properly subject to arbitration and the Arbitrator had no jurisdiction to consider the grievance. For these reasons, we find that the award is contrary to law and, therefore, we will set aside the award.

V. Decision

The award is set aside.(3)