44:0559(47)AR - - Justice, INS and AFGE, National INS Council - - 1992 FLRAdec AR - - v44 p559



[ v44 p559 ]
44:0559(47)AR
The decision of the Authority follows:


44 FLRA No 47

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL

(Union)

0-AR-2162

DECISION

March 25, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Diane Dunham Massey 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 did not file an opposition to the Union's exception.

The Union filed a grievance alleging that the Agency improperly reassigned the grievant to the position of Immigration Examiner. The Arbitrator denied the grievance. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

In 1977, the grievant was hired as a GS-11 Special Agent/Criminal Investigator. In October 1986, he suffered an on-the-job injury and did not work for approximately 1 year. Upon his return to work, the grievant was detailed to the position of GS-11 Immigration Examiner. In April 1988, Special Agents became eligible to receive GS-12 pay.

On March 28, 1990, while he was still on detail to the Immigration Examiner position, the grievant filed an appeal with the Merit Systems Protection Board (MSPB) contesting the Agency's failure to return him to his Special Agent position. The grievant alleged that the Agency had violated his right to be returned immediately and unconditionally to his Special Agent position. The grievant also alleged that the Agency had prejudiced his promotion to GS-12 by failing to return him to his Special Agent position and by refusing to end his detail to the Immigration Examiner position.

On May 25, 1990, an MSPB Administrative Judge dismissed the grievant's appeal for lack of jurisdiction. Solberg v. Department of Justice, MSPB CH0353901369 (May 25, 1990). The Administrative Judge noted the grievant's claim that the MSPB had jurisdiction over the appeal because the Agency did not restore the grievant to the position of Special Agent even though the grievant had fully recovered from his compensable injury within 1 year from the date that his Office of Workers' Compensation Programs (OWCP) compensation payments began. The Administrative Judge also noted that: (1) under 5 C.F.R. § 353.401, the MSPB has jurisdiction over appeals from employees who fully recover from compensable injuries; (2) under 5 C.F.R. § 353.301(b), employees who fully recover from compensable injuries within 1 year of the date that OWCP compensation payments began must be restored immediately and unconditionally to the position they left or a comparable one; and (3) under 5 C.F.R. § 353.102, "fully recovered" is a term of art and employees are deemed fully recovered when their OWCP "temporary total or temporary partial disability payments have terminated." Award at 8.

The Administrative Judge found that at the time of the appeal the grievant "was still receiving OWCP benefits" and, therefore, that the grievant was not "fully recovered" within the meaning of 5 C.F.R. § 353.102. Id. Having found that the grievant was not fully recovered, the Administrative Judge found that the MSPB did not have jurisdiction over the appeal on the basis of 5 C.F.R. § 353.401 and that the grievant "was not entitled to restoration to his job . . . ." Id. The Administrative Judge also noted the grievant's contention that his promotion to a GS-12 Special Agent "had been prejudiced by the Agency's failure to end his detail to the GS-11 Immigration Examiner position." Id. However, the Administrative Judge found that the MSPB does not have jurisdiction to review an employee's "non-selection for a position, a non-promotion, or alleged irregularities in promotion procedures." Id. Accordingly, the Administrative Judge dismissed the grievant's appeal. No petition for review of the Administrative Judge's decision to dismiss the appeal was filed with the MSPB.

On July 29, 1990, the Agency permanently reassigned the grievant to the Immigration Examiner position. In August 1990, the Union filed the grievance in this case seeking to restore the grievant to the Special Agent position and to provide the grievant with retroactive pay for the GS-12 pay increase received by employees in Special Agent positions. The parties stipulated that the issues were whether the grievance was arbitrable and, if so:

Did Management violate the agreement between the Parties as well as existing Federal regulations

when they "detailed" (on October 1, 1987) and, later, reassigned (on July 29, 1990) the Grievant . . . to the position of Immigration Examiner from his position as a Special Agent? If so, what is the appropriate remedy?

Award at 2.

The Arbitrator found that the grievance was arbitrable only as it pertained to the matter of the grievant's reassignment to the Immigration Examiner position on July 29, 1990.(*) As to whether the grievant had been properly reassigned to the Immigration Examiner position, the Arbitrator stated that "it appears that the answer to that issue has already been determined in matters that have already been litigated." Id. at 13.

The Arbitrator stated that the fact that the MSPB Administrative Judge dismissed the grievant's appeal for lack of jurisdiction "is somewhat misleading." Id. The Arbitrator noted that the "MSPB did make a finding of fact and a conclusion that the [g]rievant was not entitled to the rights for which he was appealing." Id. According to the Arbitrator, the MSPB "determined that the [g]rievant was not 'fully recovered' as a matter of law by observing" the following:

Under OPM's (Office of Personnel Management) regulations, "fully recovered" means that "compensation payments have been terminated on the basis that the employee was able to perform all the duties of the position he left or an equivalent one." . . . The Board has further stated that "the cessation of benefits as determined by OWCP . . . triggers the employee's 'full recovery.'" . . . In the instant case, the record indicates that the appellant ([g]rievant) is still receiving temporary partial disability payments because OWCP continues to reimburse him $401 for every 28 days for lost overtime pay[.] . . . Therefore, because the appellant ([g]rievant) . . . continues to receive[] OWCP benefits as a partially disabled employee, [the Administrative Judge] find[s] that [the grievant] is not "fully recovered" within the meaning of [5 C.F.R. §] 353.102.

Id. at 13-14 (emphasis in Arbitrator's award).

The Arbitrator stated that although much of the "conflict" in the case before her "center[ed] on when and whether the [g]rievant was fully recovered . . . such a determination is really not relevant in this case." Id. at 14. The Arbitrator noted that Article 20 of the parties' collective bargaining agreement contains language similar to that of 5 C.F.R. § 353.301(b) and provides, in relevant part:

B. An [e]mployee who suffers a compensable illness or injury and later, within one year after commencement of benefits, recovers from such injury or illness and meets the physical requirements of the position to which he is being assigned will be restored to duty in the former or an equivalent position in accordance with 5 U.S.C. 8151 and 5 C.F.R. 353.307.

Id.

The Arbitrator stated that "[t]he MSPB has already determined that the [g]rievant is not entitled to restoration because he was not legally fully recovered within one year after commencing benefits." Id. The Arbitrator further found that the parties' collective bargaining agreement and applicable regulations do "not offer any job [i]ncumbency guarantees for individuals, such as the [g]rievant, who fully recover after one year of receiving benefits." Id. at 14-15 (emphasis in original). Therefore, the Arbitrator determined that "regardless of the [g]rievant's condition, he does not have the right, based on his on-the-job injury, to return to the position of Special Agent" and that "[t]here is no contractual provision preventing the [Agency] from assigning (reassigning) the [g]rievant to the Immigration Examiner job under the circumstances." Id. at 15.

Noting the MSPB's determination that, "by law, [the grievant] had no absolute right to the position of Special Agent," the Arbitrator rejected the Union's assertions that: (1) the grievant was treated differently from other employees in similar situations; (2) management had taken reprisals against the grievant; and (3) management had discriminated against the grievant on the basis of handicap. Id. The Arbitrator found that the grievant's reassignment "was not in violation of any regulation or contract provision." Id. at 16.

In conclusion, the Arbitrator found that the Agency "did not violate the contract or any Federal regulation or statute, when it permanently reassigned the [g]rievant to the position of Immigration Examiner." Id. at 17. Accordingly, the Arbitrator denied the grievance.

III. The Union's Exceptions

The Union contends that the award is deficient because it is based on nonfacts. According to the Union, had the Arbitrator recognized the proper facts, she would have directed the Agency to return the grievant to his Special Agent position. The Union asserts that the MSPB's evaluation of the facts "was improperly made absent all the facts and evidence which were made available during the arbitration hearing." Exceptions at 2. The Union contends that by relying on the rationale in the MSPB decision "rather than the facts established during the hearing[,] the [A]rbitrator in effect based her decision on non-facts which are not supported by the documentary and testimonial evidence presented by the parties during the hearing." Id. Specifically, the Union contends that the award is based on the nonfacts that: (1) the grievant did not return to work fully recovered within 1 year from the date of his injury; and (2) the grievant received continuous disability benefits for more than 1 year, thereby relieving the Agency from any obligation to return him to his position as a Special Agent. The Union asserts that the facts presented at the hearing demonstrate that neither is true.

IV. Analysis and Conclusions

For the reasons discussed below, we find that the Union fails to establish that the Arbitrator's award is deficient because it is based on nonfacts. Accordingly, we will deny the Union's exception.

We will find an award deficient because it is based on a nonfact when the contending party establishes that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 889, 893 (1991).

In this case, the Arbitrator noted the MSPB's finding that the grievant was receiving temporary partial disability payments and its determination that the grievant had no absolute right by law to return to the Special Agent position because he was not fully recovered within the meaning of 5 C.F.R. § 353.102. The Arbitrator further found that, under the parties' collective bargaining agreement and applicable regulations, the grievant did not have the right, regardless of his condition, to return to the position of Special Agent. Accordingly, the Arbitrator concluded that the Agency did not violate the contract or any Federal regulation or statute when it reassigned the grievant to the Immigration Examiner position.

The Union fails to establish that the Arbitrator's factual findings are clearly erroneous. In essence, the Union is arguing that the Arbi