U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California and Laborers' International Union of North America, Local 1276
[ v55 p193 ]
55 FLRA No. 34
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
GOLDEN GATE NATIONAL RECREATION AREA
SAN FRANCISCO, CALIFORNIA
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 1276
February 23, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Thomas Angelo 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained the grievance over the grievant's reassignment as the result of her disqualification from her law enforcement position. We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
In 1990, the grievant was appointed a seasonal park ranger (law enforcement) and was appointed a permanent ranger (law enforcement) in 1993. In 1995, she completed a standard form to provide information necessary for a background investigation. In response to a question of whether she had ever "used, possessed, supplied, or manufactured any illegal drugs," the grievant answered that she had not. Award at 4 (quoting standard form). Subsequently, during an interview with an investigator, she recalled a single instance of marijuana use in October 1992, and so informed the investigator. [ v55 p194 ]
When the interview was reviewed by the Agency's chief law enforcement officer, he recommended that the grievant be disqualified from holding a law enforcement position because her credibility and character would be subject to impeachment in court as a result of her illegal drug use and her deception regarding that use. Local and regional park management disagreed. They found that the grievant had not falsified her form and that the marijuana use was too singular to be significant. The Agency's chief ranger adopted the recommendation of his chief law enforcement officer and disqualified the grievant from holding a law enforcement position.
As a result, the grievant was reassigned to a ranger position that was not law enforcement. She filed a grievance that was submitted to arbitration on the following stipulated issues:
Whether the Grievant's reassignment from her position as Park Ranger (Law Enforcement) to Park Ranger (Events) was corrective and progressive in nature, and only taken for just cause and to promote the efficiency of the service? If not what should the remedy be?
Id. at 3. The parties also stipulated that the matter was properly before the Arbitrator for resolution.
The Arbitrator determined that the stipulated issue presented the question of whether the Agency's action in disqualifying the grievant from law enforcement was unwarranted or exceeded its authority. In addition, the Arbitrator determined that he was authorized to review the disqualification decision because it was the type of decision that the Merit Systems Protection Board (MSPB) has held is not precluded from review. Id. at 9 (citing Jacobs v. Department of the Army, 62 MSPR 688 (1994)).
The Arbitrator sustained the grievance. He ruled that the Agency did not have just cause to disqualify the grievant from her law enforcement position. Accordingly, he ordered her reinstated to her law enforcement position with backpay and benefits.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient on two grounds.
First, the Agency contends that the Arbitrator exceeded his authority by basing his award on the propriety of the grievant's disqualification to hold a law enforcement commission. The Agency maintains that the subject of the grievance and the issues stipulated to by the parties pertained to the reassignment of the grievant. The Agency asserts that the grievant's disqualification to hold a law enforcement commission was a separate decision made by the Agency and that the disqualification was not the subject of the grievance and was beyond the issues stipulated to by the parties.
Second, the Agency contends that the award is contrary to section 7121(c)(3) of the Statute. [n1] The Agency contends that its determination to disqualify the grievant was a matter taken under 5 U.S.C. § 7532 and that consequently, the grievance is precluded by law under section 7121(c)(3).
2. Union's Opposition
The Union contends that the Arbitrator did not exceed his authority and that the issue of section 7121(c)(3) is barred from consideration.
The Union argues that the Arbitrator properly considered the grievant's disqualification from law enforcement because it was encompassed within the issue of the propriety of the grievant's reassignment. The Union argues that the issue of whether the grievance is precluded by section 7121(c)(3) is barred by section 2429.5 of the Authority's Regulations because the Agency never presented the issue to the Arbitrator. Alternatively, the Union argues that the grievance is not precluded because section 7532 is inapplicable.