49:1582(143)AR - - Agriculture, Forest Service, Northern Region, ID Panhandle National Forests and NFFE, Local 1818 - - 1994 FLRAdec AR - - v49 p1582



[ v49 p1582 ]
49:1582(143)AR
The decision of the Authority follows:


49 FLRA No. 143

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE, NORTHERN REGION

IDAHO PANHANDLE NATIONAL FORESTS

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1818

(Union)

0-AR-2561

_____

ORDER DISMISSING EXCEPTIONS

July 14, 1994

_____

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 James E. Reed 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.

The Arbitrator denied a grievance over the Agency's decision to lay off the grievant and place him in a non-pay status. For the following reasons, we conclude that we lack jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.

II. Background and Arbitrator's Award

The dispute in this matter arose when the Agency laid off the grievant and placed him in non-pay status for a period of 28 days from May 2, 1993, to May 29, 1993. A grievance was filed challenging the Agency's authority to place the grievant in such a status. When the parties could not resolve the dispute, it was submitted to arbitration.

According to the Arbitrator there were three issues for resolution at arbitration. The procedural issues were identified as follows:

1. Is the grievance arbitrable or did the Union fail to follow the prescribed grievance procedure outlined in Article 9 of the Collective Bargaining Agreement?

2. Did the Agency respond to the grievance in a timely manner as outlined in the Collective Bargaining Agreement?

Award at 1. The substantive issue was identified as follows:

Did the Agency have the authority to place the Grievant on non-work/non-pay status?

Id.

The Union raised a number of arguments before the Arbitrator. Among them, the Union contended that the Agency's action in laying off the grievant and placing him in a non-pay status constituted "a furlough within the meaning of 5 USC, Sec. 7511, et. seq." and, therefore, was subject to adverse action procedures. Id. at 4. The Union also argued that as the grievance related to an adverse action, it was properly filed at step 3 of the negotiated grievance procedure.

Although the Agency claimed that the grievant was a seasonal employee, the Union maintained that the Agency never processed a personnel action establishing that the grievant was employed as a seasonal employee and that the alleged seasonal contract under which the Agency claimed the grievant worked was invalid and not enforceable. In this regard, the Union claimed that the contract did not reference a particular person or position and was not signed by either party. However, the Union asserted that, even if there were such a contract, the Agency could not lay off the grievant unless certain factors justified that action, such as budget, work, weather, employee preference and performance. Here, the Union contended that the Agency failed to establish that these factors led it to lay off the grievant. Rather, the Union asserted that management's decision was based on cost effectiveness, which is not a materially relevant factor under the terms of a seasonal contract. The Union also referenced a prior arbitration award, the Corbett award, which, in the Union's view, merely addressed "the [g]rievant's proper category of employment[]" but did not find that an employment contract existed between the grievant and the Agency. Id. at 7.

The Union also argued that under provisions of the parties' agreement and Federal Personnel Manual (FPM) chapter 340, subchapter 2, subsection 2-12.a, the Agency was required to minimize the adverse impact of the layoff on the grievant.(*) According to the Union, the Agency made no efforts in this regard, despite the fact that the grievant requested an arrangement to minimize the effect of the layoff. Accordingly, the Union contended that the grievant's layoff was a procedurally flawed personnel action that resulted in the unjustified withdrawal or reduction of the grievant's pay for which he should receive backpay.

As a remedy for the Agency's unlawful conduct in laying off the grievant, the Union requested an award of backpay, with interest, and the restoration of benefits associated with the period of the grievant's layoff.

Before the Arbitrator, the Agency argued, among other things, that the grievance was improperly expanded during its processing through the steps of the grievance procedure to include the issue of whether the grievant's layoff was subject to the adverse action procedures contained in the FPM. Additionally, the Agency maintained that the Union attempted to add other issues at the arbitration hearing. The Agency claimed that it was never afforded the opportunity to respond to the new issues and, therefore, that those issues should not be heard, the grievance should be denied, and the Union should pay all arbitration costs.

The Agency also claimed that it had valid reasons for placing the grievant in a non-pay status because there was no work for him to perform. The Agency asserted that the grievant was a seasonal employee as defined in FPM chapter 340, subchapter 2, and referenced the Corbett award, in support. More particularly as to that award, the Agency noted Arbitrator Corbett's finding that, as a seasonal employee, the grievant was "subject to periodic release and recall without regard to adverse action procedures." Id. at 17. Moreover, the Agency argued that it had never converted the grievant to any other type of employment at any time after his placement into seasonal employment. Additionally, the Agency argued that the remedy of backpay was technically not an issue because if the Agency did not have the authority to place the grievant in a non-pay status, it automatically would have been required to reimburse the grievant for lost pay and benefits.

Initially, the Arbitrator found that the grievance was arbitrable. In this regard, the Arbitrator concluded that the parties' agreement did not preclude a grievance from being filed at the step 3 level, although the Arbitrator stated that the filing of the grievance at that step was "ill-conceived and only created a great deal of confusion" for both parties. Id. at 19. The Arbitrator also rejected the Agency's contention that the grievance should be remanded to the parties for further processing because the Agency did not have an opportunity to respond to the issues raised by the Union at the earlier steps of the grievance procedure. The Arbitrator found that it made no sense, given the issues and parties involved, to give the parties another chance to resolve the grievance because it "would only result in a needless delay in resolving the issues." Id. at 20.

As to the merits of the grievance, the Arbitrator determined that there were three issues to be resolved: (1) the grievant's employment status; (2) whether the Agency demonstrated a justification for placing the grievant in a non-pay status; and (3) whether the Agency had other motives for placing the grievant in a non-pay status.

As to the first issue, the Arbitrator found that in the Corbett award, the grievant was found to be a seasonal employee. The Arbitrator here concluded, after reading the Corbett award, "that the guaranteed 18 pay periods [the grievant] was entitled to prior to his conversion to Seasonal Status remains in effect at the time of Arbitrator Corbett's decision." Id. at 22. Adding that "the concept of 'Stare Decisis' must prevail[,]" the Arbitrator stated that "the [g]rievant is a Seasonal Employee with a minimum 18 guaranteed pay periods per year." Id.

As to the second issue, the Arbitrator found that although the Agency used temporary employees in place of the grievant, the Union did not demonstrate that the Agency was required to use seasonal employees to perform the work.

Finally, as to the third issue, the Arbitrator rejected the Union's contention that the Agency had a "hidden agenda" in placing the grievant in a non-pay status. Id. at 23. In this regard, the Arbitrator found that the Union failed to prove "by any standard that the Agency took action against him for an inappropriate reason[.]" Id.

In sum, the Arbitrator concluded that the Union failed to "make a convincing case that the Agency did not have a legitimate reason to place the [g]rievant on non-work/non-pay status, and therefore the grievance must fail." Id. Accordingly, the Arbitrator denied the grievance. In addition, the Arbitrator found that the Union was responsible for paying all the costs of arbitration.

III. Exceptions

The Union contends that the award is deficient because the Arbitrator inappropriately substituted reliance on a prior arbitration award for the exercise of his independent judgment in determining whether the grievant was a seasonal employee. Additionally, the Union argues that because the Arbitrator failed to make a proper determination of the grievant's employment status, the Union cannot ascertain the legitimacy of the Arbitrator's finding that the Agency demonstrated a justification for placing the grievant in a non-pay status. The Union acknowledges that, under FPM chapter 340, subchapters 2-5 through 2-7, once an arbitrator determines that certain conditions of employment apply, an agency has a right to place that employee in a non-pay status. However, the Union maintains that if the relevant conditions of employment are not established, "adverse action procedures do apply." Exceptions at 7. The Union adds that when the adverse action procedures are applied, the grievance should have been sustained in the grievant's favor. The Union also contends that the Arbitrator's award is deficient because it is ambiguous and fails to resolve the parties' dispute. More specifically, the Union contends that the issue of whether adverse action procedures applied to the grievant's layoff remains unanswered. Finally, the Union argues that the Arbitrator's conclusions are not supported by the record at the arbitration hearing.

IV. Opposition

While agreeing that arbitration awards are not precedential, the Agency also argues that the Arbitrator reviewed the Corbett award and used it in support of his own determination relating to the grievant's employment status. The Agency contends that this exception constitutes nothing more than an attempt to relitigate this case before the Authority. In addition, the Agency argues that the adverse action procedures described by the Union were not applicable to the grievant, noting the Arbitrator's finding that the grievant was a seasonal employee and asserting that the Agency could lay off the grievant and place him in a non-pay status because this was "a pre-established condition of employment." Opposition at 2. The Agency further asserts that the award is neither ambiguous nor fails to resolve the dispute. Finally, the Agency argues that a contention that an award is contrary to the evidence in the record does not provide a basis for finding an award deficient.

V. Analysis and Conclusions

We find that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. Section 7122(a) provides, in pertinent part:

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) include serious adverse actions covered under 5 U.S.C. § 7512, such as furloughs for 30 days or less. See, for example, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79 (1988) (SSA). Review of awards relating to such matters may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703.

The Union claimed in arbitration that the Agency's action in laying off the grievant for 28 days and placing him in a non-pay status constituted a furlough within the meaning of 5 U.S.C. §§ 7511 and 7512, to which the adverse action procedures set forth in 5 U.S.C. § 7513 applied. The Union also maintained that the alleged seasonal contract under which the Agency claimed the grievant worked was invalid and not enforceable. As the grievance in this case concerns a furlough which, according to the Union, is covered by 5 U.S.C. § 7512, the grievance concerns a matter that is covered by section 7512 and, under section 7122(a) of the Statute, the Authority lacks jurisdiction to review the award. SSA, 32 FLRA at 83. See also U.S. Department of the Treasury, Internal Revenue Service, Cleveland District and National Treasury Employees Union, Chapter 37, 49 FLRA No. 134 (1994).

We note that, according to the Arbitrator, the grievant was a seasonal employee and, implicitly, the Agency was not required to conduct the grievant's furlough through the use of adverse action procedu