44:0901(72)AR - - GSA, Region 9 and AFGE Council 236 - - 1992 FLRAdec AR - - v44 p901

[ v44 p901 ]
The decision of the Authority follows:

44 FLRA No. 72












April 23, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John H. Abernathy 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 exceptions.

An employee filed a grievance contesting his 5-day suspension. The Arbitrator found that the grievance was not arbitrable and denied the grievance.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a lead police officer and member of the bargaining unit represented by the Union, allegedly engaged in the unauthorized use of a patrol car's emergency warning devices, and the Agency proposed to suspend him for 5 days. Before the Agency issued its decision to suspend the grievant for 5 days, the Agency reclassified the grievant's position to supervisory police officer, a position outside the bargaining unit. Subsequently, a grievance was filed concerning the suspension and, when it was not resolved, the grievance was submitted to arbitration. The issue before the Arbitrator was: "Is the grievance arbitrable?" Award at 4.

The Arbitrator noted that, under applicable law and the parties' collective bargaining agreement, the negotiated grievance procedure is available only to unit employees and, under 5 U.S.C. § 7103(a)(2), "the term 'employee' does not include a 'supervisor' . . . ." Id. at 9. The Arbitrator concluded, based on "a general test" set forth in Hess v. Internal Revenue Service, 892 F.2d 1019 (Fed. Cir. 1989) (Hess), that "arbitrability is based on status at the time of the adverse action . . . ." Award at 17. As the grievant was not a unit employee when the Agency issued its decision to suspend him, the Arbitrator found that the grievance was not arbitrable.

III. Positions of the Parties

The Union asserts that the award is "contrary to FLRA case law and a misapplication of [F]ederal law." Cover Letter to Exceptions. Specifically, the Union asserts that the Arbitrator "erred" in applying Hess to this case. Exceptions at 6. The Union argues, in this regard, that Hess is inconsistent with Devine v. Levin, 739 F.2d 1567 (Fed. Cir. 1984) (Levin). In addition, the Union relies on Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 11 FLRA 486 (1983) (Brookhaven). The Union argues that the Authority is responsible for determining unit status and that the award should be set aside to avoid "a situation in which the Agency can take an adverse action against an [sic] unit employee and promote that employee from the use of the Negotiated Grievance Procedure." Exceptions at 5.

The Agency contends that the Arbitrator's award is consistent with Brookhaven and that the Union's exceptions do not demonstrate that the award is deficient.

IV. Analysis and Conclusions

We reject the Union's argument that the Arbitrator erred by applying Hess. Unlike Hess, which concerned a removal action, this case concerns a 5-day suspension which is not appealable to the Merit Systems Protection Board or reviewable by the U.S. Court of Appeals for the Federal Circuit. For example, U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 211 (1991) (arbitrators are not required to apply the harmful-error rule as applied by MSPB in suspensions of 14 days or less). We also note, however, that nothing in Authority decisions would preclude the Arbitrator from applying Hess in this case.

In Hess, a unit employee was removed for misconduct that occurred while he was a supervisor. In determining whether arbitrability should be based on unit status "at the time of the adverse action or status at the time the underlying conduct occurred[,]" the court decided that an employee's status "at the time adverse action is taken" is determinative. 892 F.2d at 1020. Consistent with Hess, the Arbitrator found that, as the grievant was not a unit employee at the time the Agency issued its suspension decision, the grievant was not entitled to grieve the decision under the parties' negotiated grievance procedure.

The Arbitrator's award is consistent with Hess and, as noted above, we have no basis on which to conclude that the Arbitrator was precluded from applying Hess in this case. Accordingly, the Union's exception regarding Hess does not demonstrate that the award is deficient. In this connection, we reject as misplaced the Union's argument that the court's decision in Hess is inconsistent with Levin. We note that the court in Hess expressly found no such conflict. See Hess, 892 F.2d at 1020 n.* ("no conflict in the holdings of this court in Levin and in the present case should be inferred from the language of the opinion in either.").

We also find that Brookhaven does not support the Union's argument that the award is deficient. In Brookhaven, a unit employee grieved the agency's failure to approve administrative leave for certain matters. After arbitration was invoked on the grievance but before the hearing wa