51:0210(23)AR - - DOD Schools, Kaiserslautern, Germany and Overseas Education Association - - 1995 FLRAdec AR - - v51 p210
[ v51 p210 ]
The decision of the Authority follows:
51 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
OVERSEAS EDUCATION ASSOCIATION
September 28, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James C. Oldham filed 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 Arbitrator sustained a grievance contesting the Agency's failure to give the grievant permanent employment status. For the following reasons, we conclude that the exceptions provide no basis for finding the award deficient. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, an elementary school teacher, worked for several years in the Department of Defense Dependents Schools (DoDDS) System. During that time, she served a trial period and was converted to permanent status. She resigned from her position for the 1990-91 school year, and was rehired by the Agency in the fall of 1991. After being rehired, the grievant was informed that the Agency had placed her in a temporary position. The Union then filed a grievance claiming that, under a Department of Defense (DoD) regulation, the grievant was entitled to a permanent position because of her previous permanent status.(1)
Before the Arbitrator, the Agency argued, as relevant here, that the grievance was not arbitrable because it concerned the grievant's "appointment," within the meaning of section 7121(c)(4) of the Statute. The Agency claimed that because the grievant was returning after her absence during the 1990-91 school year, her rehiring constituted an "appointment." The Agency argued that the definition of "conversion" set forth in the Federal Personnel Manual (FPM) supported its claim that the grievance did not concern a conversion, but rather an appointment.(2)
Rejecting this argument, and citing U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 45 FLRA 1411 (1992) (OEA), the Arbitrator determined that the grievance over management's failure to give the grievant permanent status and place her into a permanent position was not precluded either by section 7121(c)(4) of the Statute or by the FPM. On the merits, the Arbitrator sustained the grievance and ordered that the grievant be made whole and "converted retroactively to permanent status effective the day of her rehire[,]" with backpay, benefits, and interest. Award at 25.
III. Positions of the Parties
The Agency maintains that the award is deficient because it is contrary to section 7121(c)(4) of the Statute. The Agency contends that the grievance does not concern the grievant's rights to conversion to permanent status, as the Arbitrator found, but rather, the grievant's "appointment," and that OEA is distinguishable because, unlike the employees in OEA, the grievant was returning after a clear break in service. The Agency also claims that the Arbitrator's award interferes with management's right, under section 7106(a)(2)(C) of the Statute, to make selections for appointments. Finally, citing several Comptroller General decisions, the Agency argues that the grievant did not have a right to a permanent appointment by statute or regulation.
The Union contends that the Agency is merely disagreeing with the Arbitrator's findings of fact and conclusions of law and is attempting to relitigate the same issues presented to the Arbitrator. Moreover, the Union claims that the Agency's arguments concerning the issues of appointment and conversion as they relate to FPM Supplement 296-33 have previously been addressed and dismissed by the Authority in OEA. The Union also argues that the award does not violate management's right to select under section 7106(a)(2)(C) of the Statute because management had already determined that the grievant was a qualified candidate and had selected her for the vacant position.
IV. Analysis and Conclusions
A. Section 7121(c)(4) of the Statute
Section 7121(c)(4) provides that the scope of a grievance procedure negotiated under the Statute may not extend to any grievance concerning an "examination, certification, or appointment[.]"
The Authority has held that the term "appointment" in section 7121(c)(4) relates to the initial entry of an applicant into the Federal service. See, for example, National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO and United States Department of Labor, 4 FLRA 376, 381 (1980) (DOL); National Federation of Federal Employees, Local 1636 and U.S. Department of Defense, National Guard Bureau, Albuquerque, New Mexico, 48 FLRA 511 (1993) (National Guard Bureau); OEA ; United States Information Agency and American Federation of Government Employees, Local 1812, 32 FLRA 739 (1988). The Claims Court also has construed the term "appointment" in section 7121(c)(4) of the Statute as relating only to an individual's initial appointment. Brammer v. United States, 24 Cl. Ct. 487, 492 (1991) (Brammer).
It is clear that the grievant in this case is not contesting any matter in connection with her initial appointment to a position in the Federal service, or with the Agency. Instead, the grievant disputes the status of the position to which she was reappointed.
The D.C. Circuit has distinguished between appointments and reappointments for purposes of section 7121(c)(4). In Suzal v. Director, United States Information Agency, 32 F.3d 574 (D.C. Cir. 1994), the plaintiff, a Turkish citizen who had been employed by the USIA under a series of 1-year appointments, filed suit alleging various Constitutional and other claims when the USIA decided not to renew his appointment. On appeal, the D.C. Circuit concluded that the plaintiff's collective bargaining agreement provided the exclusive avenue of redress. In so doing, the court stated:
To be sure, as required by 5 U.S.C. § 7121(c)(4), the collective bargaining agreement excludes from the negotiated procedure any grievance concerning an "examination, certification or appointment." . . . But we read the word "appointment" in the context of both statute and agreement to refer only to initial appointments, not to reappointments. The FLRA appears to agree. See, e.g., [National Guard Bureau; OEA; cf. Brammer].
Id. at 580 (emphasis in original). Further support for the conclusion that an appointment is not the same as a reappointment may be found in the fact that they differ in other respects. For example, employees who are reappointed have opportunities, in certain circumstances, to have sick leave that was accumulated in a prior position recredited. 5 C.F.R. § 630.502. Reappointees, who were career employees, may also, under certain circumstances, reenter the competitive service as career employees. 5 C.F.R. § 315.201(c). In addition, upon reappointment, service in a prior appointment may fulfill the reappointee's requirement to serve a probationary period. 5 C.F.R. § 315.801(a)(2).
The Agency cites no authority for its claim that the grievance in this case concerns an appointment within the context of section 7121(c)(4). In this regard, the Agency's reliance on the FPM's definition of "conversion" to support its claim that the grievance in this case involves an appointment is misplaced. As the Authority stated in OEA, the definition of conversion contained in FPM Supplement 296-33, subchapter 11-2 "'in no manner specifies that grievances over conversions from temporary appointments to permanent appointments concern appointments within the meaning of section 7121(c)(4) of the Statute.'" 45 FLRA at 1416-17. The Agency's reliance on two Comptroller General decisions to support its claim that the grievance concerned an appointment is also misplaced. Those decisions were not based on an interpretation of the term "appointment" in section 7121(c)(4) and did not concern the individuals' reappointments.
Based on the foregoing, we conclude that the grievance in this case is not precluded by section 7121(c)(4) of the Statute.
B. Management's Right to Select Under Section 7106(a)(2)(C) of the Statute
Nothing in the award orders the Agency to rescind, cancel or change the manner of its selection of the grievant for the teaching position. Moreover, the Agency does not dispute that it determined that the grievant was a qualified candidate and had exercised its right to select her on that basis.
As the Agency's exception relates only to the Arbitrator's order requiring the Agency to convert the grievant from a temporary to a permanent status, the exception does not establish that the award implicates management's right to select a candidate for a position from among properly ranked and certified candidates, or from any other appropriate source under section 7106(a)(2)(C). Moreover, because the Arbitrator did not require the Agency to take or refrain from taking any particular actions with regard to the selection of the grievant for a position, the award does not otherwise interfere with management's right under section 7106(a)(2)(C) of the Statute. See U.S. Department of Agriculture, Federal Grain Inspection Service and American Federation of Government Employees, Local 3157, 46 FLRA 189, 193-94 (1992); U.S. Department of the Treasury, Internal Revenue Service, Louisville District and National Treasury Employees Union, 36 FLRA 375, 384-88 (1990).
Consequently, we conclude that the Arbitrator's award does not interfere with management's right to select under section 7106(a)(2)(C) of the Statute.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The regulation, DoD Directive 1400.13, is not relevant to this exception and will not be set forth herein.
2. FPM Supplement 296-33, subchapter 11-2 stated, as pertinent here:
a. An appointment brings an individual