47:0150(8)AR - - AFGE, Local 916 and Air Force, OK City Air Logistics Center, Tinker Air Force Base, OK - - 1993 FLRAdec AR - - v47 p150

[ v47 p150 ]
The decision of the Authority follows:

47 FLRA No. 8















March 19, 1993


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 Andrew L. Springfield filed by the Union and by the Agency 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 Union filed an opposition to the Agency's exceptions. The Agency did not file an opposition to the Union's exceptions.

The grievance in this case involved the removal of the grievant from the Federal service for falsifying a statement on his Federal declaration of appointee form (SF-61-8). The Arbitrator found that the removal was not for just cause and was excessive and sustained the grievance in part. Accordingly, the Arbitrator ordered the Agency to reinstate the grievant, if the grievant requested, and to delete all references to the grievant's removal from the Agency's files. However, the Arbitrator denied the grievance with respect to the request for backpay.

For the following reasons, we find, as a matter of law, that the Arbitrator was without jurisdiction over the removal action. Accordingly, we will set the award aside.

II. Background and Arbitrator's Award

In June 1987, the grievant applied for a position at the Agency. In August 1988, as part of the employment process, the grievant was required to fill out an SF-61-8.(*) The SF-61-8 contains a question asking whether the applicant has been "fired from employment for any reason" since his or her initial application form was filed. Award at 1. In response to that question, the grievant indicated that he had not been fired for any reason since he filed his initial application. In December 1988, the grievant was interviewed and hired by the Agency.

Subsequently, the Office of Personnel Management (OPM) conducted a background investigation of the grievant on behalf of the Agency. OPM advised the Agency that the grievant had been fired from a position on August 1, 1988. On November 5, 1990, after conducting its own investigation, the Agency proposed that the grievant be terminated for the falsification of his SF-61-8. Following review of the grievant's written response to the Agency's proposal, as well as other relevant information, the Agency gave the grievant notice of its final decision to remove him from employment effective December 10, 1990.

The grievant grieved his removal. The grievance was unresolved and was subsequently submitted to arbitration. The Arbitrator accepted for resolution the following issue as submitted by the Union: "Was the removal of the [g]rievant for just cause, and, if not, what is the proper remedy?" Id. at 6. The Arbitrator, noting that "the Agency offered in evidence a series of instances where other employees had been discharged for falsifying their employment application[,]" found "no credible evidence" to support the Union's contention that the grievant was treated in a disparate manner. Id. at 9. However, the Arbitrator concluded that "while the [g]rievant may have been culpable, his discharge was not for just cause and was excessive in light of the circumstances of the case." Id. As his award, the Arbitrator "sustained [the grievance] with respect to removal from all Agency files any reference to the [g]rievant's discharge, and with respect to the [g]rievant's reemployment if he desires it." Id. The Arbitrator denied the grievant's request for backpay.

III. Positions of the Parties

A. Agency

The Agency contends that the Arbitrator's award is deficient because, as a matter of law, the Arbitrator did not have jurisdiction to hear the case.

The Agency states that the grievant's appointment in December 1988 was temporary and not to exceed April 27, 1989. The Agency further states that "[p]rior to the expiration of the temporary appointment, the grievant, a nonpreference-eligible [employee], was converted on March 12, 1989[,]" to a Schedule A excepted service appointment pursuant to 5 C.F.R. § 213.3102(u). Agency's Exception at 2.

Relying on National Labor Relations Board and National Labor Relations Board, Professional Association, 35 FLRA 1116 (1990) (NLRB), the Agency contends that because "'nonpreference-eligible, excepted service employees are precluded by law from challenging an adverse action set forth in 5 U.S.C. § 7512 . . . through the negotiated grievance procedure[,]'" the Arbitrator was without jurisdiction over the Agency's removal action and was therefore "'precluded by law from reaching the merits of the removal action.'" Id. (quoting NLRB, 35 FLRA at 1117). The Agency states that "[a]lthough [the grievant] was hired after the enactment of the Civil Service Due Process Amendments," Pub. L. No. 101-376, 104 Stat. 461 (1990) (Amendments), "these [A]mendments do not affect the grievant's status." Id. at 3. The Agency explains that, at the time of his removal, the grievant had not met time requirements under the Amendments which would have entitled the grievant to the protection of the Amendments. Therefore, the Agency asserts that "the grievant was not an 'employee' for the purposes of [chapter 75, subchapter II of title 5 of the United States Code]." Id. Accordingly, the Agency requests that the Arbitrator's award be set aside because it is contrary to law.

B. Union

The Union excepts to the Arbitrator's conclusion that the grievant was not subject to disparate treatment by the Agency and to the Arbitrator's denial of the grievant's request for backpay. Among other things, the Union contends that the Arbitrator's award is deficient because it violates law, regulations, and the parties' master labor agreement. The Union also contends that the Arbitrator exceeded his authority and that the Arbitrator's findings and conclusions are inconsistent.

The Union requests that the Authority not consider the Agency's contention concerning the Arbitrator's jurisdiction. Citing the parties' agreement, the Union asserts that because the Agency did not raise the issue of nonarbitrability during the grievance procedure or at the arbitration hearing, the Arbitrator's "award must stand." Opposition at 3.

IV. Analysis and Conclusions

We find that the award is deficient because it is contrary to law. Specifically, we find, as a matter of law, that the Arbitrator had no jurisdiction to determine the merits of the grievant's removal.

As an initial matter, we note that the Union contends that the Arbitrator's award must stand because the Agency did not raise the issue of jurisdiction until filing its exception with the Authority. The Union's contention is without merit. The issue of an arbitrator's jurisdiction under law to hear a grievance is properly considered by the Authority, regardless of whether it has been raised by the parties. See, for example, NLRB, 35 FLRA at 1124 (although not raised by the parties, as a preliminary matter the Authority resolved the issue of whether the arbitrator had jurisdiction to hear the grievances before him). Further, because the Agency's exception addresses whether the Arbitrator's award is deficient because it is contrary to law it is properly before us under section 7122(a)(1) of the Statute. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council, Local 1929, 40 FLRA 43, 52 (1991). Accordingly, we will consider the Agency's exception. However, we note in this regard that good practice dictates that such arguments should be brought to the attention of the arbitrator.

The Agency states that, at the time of his removal, the grievant was a Schedule A nonpreference-eligible, excepted service employee. Further, the Agency states that the grievant is not covered by the Amendments because he is not an "employee" as defined by the Amendments, and, as such, cannot challenge the Agency's removal action through the negotiated grievance procedure. These statements are not challenged by the Union. We conclude, therefore, based on the record in this case, that the grievant is a nonpreference-eligible, excepted service employee not covered by the Amendments.

In NLRB, we held that nonpreference-eligible, excepted service employees are precluded by law from challenging a major adverse action, such as removal from the Federal service under 5 U.S.C. § 7512, through the negotiated grievance procedure. Therefore, we concluded that the removal of a nonpreference-eligible excepted service employee is not properly subject to arbitral review. Subsequent to our decision in NLRB, the Amendments were enacted. The Amendments "extend to certain employees in the excepted service who are not preference eligibles the same administrative notice and appeal procedures currently provided employees in the competitive service and preference eligible employees in the excepted service." H.R. Rep. No. 328, 101st Cong. 2d Sess. 1 (1990). Based on the Amendments, in National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 359 (1991), we held that certain nonpreference-eligible, excepted service employees covered by the Amendments were able to challenge major adverse actions through negotiated grievance procedures. As noted above, the grievant