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53 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INDIAN EDUCATORS FEDERATION

NEW MEXICO FEDERATION OF TEACHERS

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

ALBUQUERQUE AND NAVAJO AREAS

ALBUQUERQUE, NEW MEXICO

(Agency)

0-AR-2729

_____

DECISION ON REQUEST FOR RECONSIDERATION

September 8, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

Decision by Member Wasserman for the Authority

I. Statement of the Case

This case is before the Authority on the Union's request for reconsideration of the Authority's unpublished order dismissing for lack of jurisdiction the Union's exceptions to the arbitration award of Arbitrator George E. Bardwell and denying the Union's motion for a stay. The Agency did not file oppositions to the Union's request or to the Union's exceptions.

We conclude that extraordinary circumstances exist under section 2429.17 of the Authority's Regulations, and we grant reconsideration of the Authority's order. On reconsideration, we find that we have jurisdiction to resolve the Union's exceptions to the award, and we vacate the order. Addressing the Union's exceptions to the award, we conclude that the Union fails to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant was employed by the Agency as an educator. During the 1993-94 school year, the grievant served as a contract elementary school teacher at the Zia Day School on the Zia Pueblo Indian Reservation. His contract provided for employment from August 17, 1993, to June 3, 1994. As a result of incidents in the grievant's classes on March 8, 1994, the Zia Pueblo School Board instructed the grievant's principal to inform the grievant that he was not to return to the school. Subsequently, the governor of the Zia Pueblo banned the grievant from the pueblo on which the elementary school is located.

The grievant was assigned to an administrative position until the expiration of his contract. On March 30, 1994, the school principal notified the grievant that his contract would not be renewed for the 1994-95 school year. The grievant appealed to the school board, which upheld the decision. He appealed the decision of the school board to the Agency superintendent for education, whose failure to reply sustained the school board's decision. The grievant was separated from employment upon the expiration of his contract in June 1994.

The Union filed a grievance under the parties' collective bargaining agreement on behalf of the grievant. The Arbitrator determined that the grievance was not substantively arbitrable under the agreement.

The Arbitrator noted that Article 18, Section 2 of the parties' collective bargaining agreement defines "grievance" as a complaint affecting conditions of employment, but that Section 2 also provides that grievances are not proper matters to bring before school boards.⁽¹⁾ He noted that Agency regulation 62 BIAM 11.29 ⁽²⁾ sets forth the procedures for appealing nonrenewals of teaching contracts and that these procedures require a hearing before the school board. The Arbitrator found a conflict between the Union's claim that the grievant's complaint over the nonrenewal of his contract is a valid grievance under Article 18, Section 2 and the Union's actions in bringing the complaint to the school board.

The Arbitrator concluded that the nonrenewal of the grievant's contract was a matter that did not affect his employment and that, therefore, the grievant's complaint was not a grievance within the meaning of Article 18, Section 2. The Arbitrator reached this conclusion by examining the provision in the grievant's contract stating that the "[f]ailure to renew this contract does not constitute termination for cause or for other reasons." Award at 18.

The Arbitrator also found that the grievance was excluded from the parties' negotiated grievance procedure by Article 18, Section 2(J) of the parties' collective bargaining agreement, which excludes matters relating to the "[c]ontent of written policies and regulations of OPM, DOI, BIA, OIEP[.]" Id. at 3. The Arbitrator explained that the grievance was excluded because the Union had challenged the procedures of 62 BIAM 11.29 as constitutionally inadequate in terminating the grievant's employment.

The Arbitrator further found that the grievance was not arbitrable because Article 18, Section 2(L) of the collective bargaining agreement excludes matters "where the authority to resolve is not with OIEP [the Office of Indian Education Programs]." Id. The Arbitrator ruled that the grievant's banishment from the Pueblo of Zia "negated any authority of the OIEP" to renew the grievant's contract with the Zia Day School. Id. at 20.

For each of these reasons, the Arbitrator ruled that the matter of the grievant's contract nonrenewal was not substantively arbitrable under the agreement.

III. Union's Exceptions and Motion For a Stay

The Union filed exceptions to the award with the Authority and a motion to stay the Authority's proceedings.⁽³⁾ In the motion for a stay, the Union stated that it had filed a petition for review of the Arbitrator's award on behalf of the grievant with the U.S. Court of Appeals for the Federal Circuit. Stating that it was unclear whether the Federal Circuit would view the matter as a removal and assert jurisdiction, the Union requested that the Authority stay its proceedings pending the outcome of the Federal Circuit's determination of jurisdiction.

IV. Authority's Order Dismissing Exceptions and Denying Motion For a Stay

The Authority concluded that it lacked jurisdiction because the award related to the grievant's removal within the meaning of section 7121(f). Accordingly, by an order dated September 20, 1995, the Authority dismissed the Union's exceptions. Based on its jurisdictional determination, the Authority also denied the Union's motion for a stay.

V. Union's Request For Reconsideration

The Union argues that, in determining whether it has jurisdiction, the Authority must consider that the Federal Circuit might conclude that this matter concerns the nonrenewal of a contract and not a removal. Accordingly, the Union requests reconsideration of the Authority's denial of its motion for a stay. Alternatively, the Union reiterates its arguments that the Authority has jurisdiction over this matter and requests reconsideration of the dismissal of its exceptions.

VI. Decision of the Federal Circuit

While the Union's request was pending, the Federal Circuit dismissed the grievant's petition for review of the Arbitrator's award for lack of jurisdiction. Schafer v. Department of the Interior, 88 F.3d 981 (Fed. Cir. 1996) (Schafer). The court determined that the grievant's separation from employment was the result of the nonrenewal of his contract of employment and that nonrenewals of contracts are not matters covered under either 5 U.S.C. §§ 4303 or 7512.

VII. Analysis and Conclusions on Request for Reconsideration

A. Grounds for Granting Reconsideration

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration has the "heavy burden" of establishing that extraordinary circumstances exist warranting reconsideration of the Authority's earlier decision. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, AFL-CIO, SEIU, 50 FLRA 84, 85 (1995). Extraordinary circumstances have been found when an intervening court decision affected dispositive issues. Id. at 86 & n.1 (citing Department of the Interior, Bureau of Reclamation, Washington, D.C. and Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 36 FLRA 3 (1990) (Bureau of Reclamation), affirmed sub nom. AFGE Local 1978 v. FLRA, 960 F.2d 838 (9th Cir. 1992)).

B. Reconsideration Warranted and Order Vacated

We conclude that extraordinary circumstances exist warranting reconsideration of the Authority's order. In granting reconsideration, we rely on the following unique factors that are present in this case: (1) the Union's timely request for reconsideration was pending before the Authority when the Federal Circuit issued its decision in Schafer; and (2) that decision directly affects the dispositive issue of whether the award relates to a matter described in section 7121(f) of the Statute. See Bureau of Reclamation.

In reconsidering our order of September 20, 1995, in which we concluded that we lacked jurisdiction to review the award in this case, we treat as dispositive the court's ruling that the award involves a nonrenewal of a contract and that, therefore, it does not relate to a matter covered under 5 U.S.C. §§ 4303 or 7512. As the award does not concern a matter covered under section 4303 or 7512, it does not relate to a matter described in section 7121(f) so as to deprive the Authority of jurisdiction under section 7122(a) of the Statute.⁽⁴⁾ As such, on reconsideration, we find no basis on which to decline jurisdiction over the Union's exceptions. Accordingly, we vacate the order dismissing the Union's exceptions and proceed to resolve them.

VIII. Union's Exceptions

The Union asserts that the award is deficient because the Arbitrator's determination that the OIEP was not authorized to resolve the grievant's complaint is a nonfact.

The Union also asserts four grounds on which it contends that the award is contrary to law or regulation. First, the Union argues that the award is deficient because "it fails to incorporate the law which commands that issues not specifically excluded from the Agreement are included and thus are grievable and arbitrable." Exceptions at 10. The Union asserts that to constitute an exclusion from a negotiated grievance procedure under the Statute, the collective bargaining agreement must "'explicitly and unambiguously'" exclude the matter. Id. at 11-12 (quoting Muniz v. U.S., 972 F.2d 1304, 1311 (Fed. Cir. 1992) (Muniz)). The Union claims that because complaints over the nonrenewal of a teaching contract are not explicitly excluded from the negotiated grievance procedure, the Arbitrator's ruling that the grievance was not arbitrable is deficient.

Second, the Union argues that the award is contrary to Agency regulations to the extent that the Arbitrator found that the grievance was excluded by Article 18, Section 2(L). The Union asserts that under Agency regulations, the OIEP clearly has authority to sustain or overrule a contract renewal decision by a school board.

Third, the Union argues that the grievant "was entitled to a remedy because of a prohibited personnel practice in violation of 5 U.S.C. § 2302[b](11)." Id. at 19. The Union claims that an award is deficient when a disputed personnel action violates merit system principles, but acknowledges that the Authority requires that the personnel action must also violate a law, rule, or regulation that implements or directly concerns merit systems principles. Id. (citing Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Federal Employees, AFL-CIO, Local 1364, 35 FLRA 754 (1990) (Carswell AFB)). In this case, the Union asserts that the grievant's termination violated the merit system principles set forth in 5 U.S.C. § 2301(b)(6)⁽⁵⁾ and violated section 2302(b)(11), which the Union alleges concerns merit system principles.⁽⁶⁾ Thus, the Union maintains that the Agency violated merit system principles and that the award is deficient because it fails to apply those principles.

Fourth, the Union argues that the award is deficient in determining that Article 18, Section 2(J) precludes the grievance. The Union contends that the grievant had a property interest in his employment and that the Agency's nonrenewal procedures "are constitutionally insufficient[]" because they deny the grievant his 5th Amendment constitutional right to due process. Id. at 13. The Union asserts that it is disputing the constitutionality of the regulations and that the "Authority is bound to consider issues of Constitutionality." Id. at 16.

IX. Analysis and Conclusions

A. The Award Is Not Based on a Nonfact

To demonstrate that an award is based on a nonfact, the appealing party must establish that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry AFB). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

The Union has not clearly established that the determination of whether the OIEP was authorized to resolve the grievant's complaint constitutes a "fact" underlying the award. Cf. U.S. Department of Defense Dependents Schools, Arlington, Virginia and Overseas Education Association, 52 FLRA 3, 10-11 (1996) (conclusion resulting from the arbitrator's interpretation of law and the parties' collective bargaining agreement to the evidence presented did not constitute a "fact" underlying the award). Consequently, the Union fails to demonstrate that the award is based on a nonfact. See id. Moreover, even if we assumed that the determination concerning OIEP's authority is a "fact" underlying the award, it is clear that the parties disputed before the Arbitrator the authority of the OIEP. Thus, the Union's assertion would provide no basis for finding the award deficient. Lowry AFB, 48 FLRA at 549. Accordingly, we deny this exception.

B. The Award Is Not Contrary to Law

Insofar as the Union contends that the award is inconsistent with law or regulation, we review the questions of law and regulation raised by the award and the exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

The Union maintains, citing Muniz, that an exclusion from the scope of the negotiated grievance procedure must be "explicit" and that the award is deficient because it fails to apply this standard. Exceptions at 11. We do not read Muniz to require this result. Rather, notwithstanding the language quoted by the Union, Muniz states that "the meaning of a collective bargaining agreement is to be derived from its reading as a whole" and relies on Bonner v. Merit Systems Protection Board, 781 F.2d 202 (Fed. Cir. 1986) (Bonner) for the proposition that exclusions under section 7121(a)(2) of the Statute need not be "specifically listed[.]" 972 F.2d at 1310. See also U.S. Department of the Treasury, Internal Revenue Service, Salt Lake City, Utah and National Treasury Employees Union, Chapter 17, 36 FLRA 278, 281-82 (1990) (IRS, Salt Lake City) (relying on Bonner, Authority disagreed with the claim that a matter is included within the coverage of a negotiated grievance procedure unless it is specifically excluded by the terms of the collective bargaining agreement). In light of the entire decision, including its reliance on Bonner, we conclude that Muniz did not hold that a collective bargaining agreement must contain language of express exclusion. Accordingly, we conclude that the award, which relies on an interpretation of various provisions in the parties' agreement, is not deficient as contrary to law. IRS, Salt Lake City.

C. The Award Is Not Contrary to Regulation

By claiming that the grievance is not excluded by Article 18, Section 2(L) because under 25 C.F.R. § 38.8 the OIEP is empowered to overrule schools boards, the Union has misapprehended the Arbitrator's award. The Arbitrator did not find the grievance excluded because the OIEP was not empowered to overrule schools boards. He found that the grievance was excluded by Section 2(L) because "the pronouncement of the Tribal Council that [the grievant] was to be banished immediately from the Pueblo of Zia negated any authority of the OIEP to renew [the grievant's] contract with the Zia Day School." Award at 20. The Arbitrator recognized that the Union could possibly challenge in Federal court the council's action, but emphasized that the "proper forum for such a challenge is obviously not through" the negotiated grievance procedure. Id. The Union fails to establish that this determination is in any manner contrary to 25 C.F.R. § 38.8. Accordingly, we deny this exception.

D. The Award Is Not Deficient Based on the Agency's Alleged Prohibited Personnel Practice

The Union claims that the award is deficient because the grievant was entitled to a remedy on the basis that the nonrenewal of his contract violated merit system principles and constituted a prohibited personnel practice. The Union's claim provides no basis for finding the award deficient.

The Union correctly sets forth the standard established in Carswell AFB for determining whether an arbitrator is authorized to remedy the violation of merit system principles. However, the Union fails to establish that such a remedy was authorized. In Carswell AFB, the Authority noted that the Merit Systems Protection Board (MSPB) holds that merit system principles are "hortatory" and are not "self-executing." 35 FLRA at 762 (quoting Wells v. Harris, 1 MSPR 208, 215 (1979)). Nonetheless, the MSPB permits an employee to challenge a personnel action as a prohibited personnel practice under section 2302(b)(11) by establishing that the action violated a law, rule, or regulation that implements or directly concerns merit system principles. Id. (citing Bodinus v. Treasury, 7 MSPR 536, 543 (1981) (Bodinus)). On this basis, the Authority held that an arbitrator can award relief under section 2302(b)(11) for violations of merit system principles only if the arbitrator also finds a violation of a law, rule, or regulation that implements or directly concerns those merit system principles. Id.

The Union alleges a prohibited personnel practice based on violations of the merit system principles set forth in 5 U.S.C. § 2301(b)(6), but does not allege, much less establish, a violation of any law, rule, or regulation implementing or directly concerning those merit system principles. The only citation provided is 5 U.S.C. § 2302(b)(11), which merely specifies that the violation of a law, rule, or regulation implementing or directly concerning merit system principles constitutes a prohibited personnel practice. Section 2302(b)(11) does not itself constitute such a law. Accordingly, the Union cannot establish a prohibited personnel practice by alleging only a violation of merit system principles and section 2302(b)(11). See Carswell AFB, 35 FLRA at 762; Bodinus, 7 MSPR at 543.

Even if we assumed that the Agency committed a prohibited personnel practice, the Union fails to explain how that made the grievance arbitrable. Nothing in the Statute mandates that any matter must be arbitrable. To the contrary, the parties remain free to exclude any matter from the coverage of their negotiated grievance procedure. Cf. U.S. Naval Air Station, Kingsville, Texas and American Federation of Government Employees, Local 1735, 35 FLRA 841 (1990) (Naval Air Station, Kingsville) (arbitrator's determination that the grievance was not arbitrable did not conflict with union's statutory right to grieve because the parties may agree under section 7121 to exclude any matter from the scope of their negotiated grievance procedure and the union had no statutory right to grieve the matter). The Arbitrator determined that the grievance in this case had been excluded from the coverage of the negotiated grievance procedure on three grounds. The claim that the Agency committed a prohibited personnel practice provides no basis for finding that determination deficient. Accordingly, we deny this exception.

E. The Award Is Not Constitutionally Deficient

The Union's exception that the award denies the grievant his constitutional right to due process provides no basis for finding the award deficient for several reasons. First, the exception focuses solely on the Arbitrator's determination that the grievance was excluded by Section 2(J). However, the Arbitrator found that the grievance was not arbitrable on three separate and independent grounds. Even if we assumed that the Arbitrator erred by finding that the grievance was excluded by Section 2(J), this exception does not address the other two grounds on which the Arbitrator found the grievance not to be arbitrable. Consequently, because the Union has provided no basis for finding the other grounds on which the Arbitrator relied deficient, focusing on Section 2(J) alone cannot establish that the award is deficient. See U.S. Department of the Treasury, Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 36 FLRA 227, 231 (1990) (exception disputing a separate and independent ground for the award provides no basis for finding the award deficient when the exception to the arbitrator's other ground for the award has been denied).

Second, even if we were to view the argument more broadly as a claim that the grievance must be arbitrable to satisfy the grievant's alleged constitutional right to due process, the Union fails to establish that the award is deficient. In dismissing the grievant's appeal, the Federal Circuit specifically rejected his claim that he had a property interest in his employment sufficient to give rise to procedural due process protection under the Fifth Amendment. Schafer, 88 F.3d at 985. The court ruled that the grievant had "pointed to nothing beyond his contract that secured his interest in re-employment with the agency or that created a legitimate claim to re-employment." Id. The Union in its exception has also pointed to nothing that implicates the due process protections of the Fifth Amendment.

Moreover, even if the grievant had a property interest sufficient to give rise to a constitutional right to due process, the Arbitrator merely determined that the parties had excluded the grievance from the coverage of the negotiated grievance procedure. Neither the Fifth Amendment nor the Statute compels that an arbitration hearing is the means by which an employee's right to due process must be satisfied. To the contrary, as noted above, the parties remain free to exclude any matter from the coverage of their negotiated grievance procedure. Cf. Naval Air Station, Kingsville.

Accordingly, we deny this exception.

X. Decision

The Union's exceptions are denied.

Appendix

Article 18, Section 2 provides in relevant part:

Definition. Grievance means any complaint by any Educator concerning any matter relating to his/her employment, by any Educator, the Union, or Management, concerning the effect of interpretation, or a claim of breach, of the collective bargaining agreement, or any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. The Educator understands that complaints affecting his/her Bureau employment are grievances and not proper matters to bring before the School Board or individual School Board Members.

Exclusions: This grievance procedure does not apply to:

. . . .

J. Content of written policies and regulations of OPM, DOI, BIA, OIEP;

. . . .

L. Grievances where the authority to resolve is not with OIEP; . . . .

Award at 2-3.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The relevant portions of Article 18, Section 2 are set forth in the appendix to this decision.

2. The procedures for nonrenewal of contract set forth in 62 BIAM 11.29 are also set forth, in substantially similar language, in 25 C.F.R. § 38.8.

3. The Union's exceptions are set out in section VIII, below.

4. Because this matter is not covered under sections 4303 or 7512, we need not decide whether the grievant was employed in another personnel system within the meaning of section 7121(f). See U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, Local 3854, 51 FLRA 1651, 1654 (1996).

5. Section 2301(b)(6) provides:

Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.

6. Section 2302(b)(11) provides:

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority--

(11) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.

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