United States Department of Defense, National Imagery and Mapping Agency, St. Louis, Missouri (Agency) and American Federation of Government Employees, Local 1827 (Union)
[ v57 p837 ]
57 FLRA No. 181
UNITED STATES DEPARTMENT OF DEFENSE
NATIONAL IMAGERY AND MAPPING AGENCY
ST. LOUIS, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1827
June 11, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Joseph J. Nitka filed by the Agency under § 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 grievances in this case challenged the contribution level that the Agency assigned to the grievants under the system that the Agency established to determine employee compensation. The Arbitrator found that the grievances were arbitrable, and ordered that the grievances be presented for resolution on the merits. [n2] [ v57 p838 ]
For the following reasons, we set aside the Arbitrator's award.
II. Background and Arbitrator's Award
1. Statutory framework
In 1996, Congress created the National Imagery and Mapping Agency (NIMA) within the Department of Defense by combining several intelligence-gathering agencies as part of a major reorganization of the intelligence community. See Senate Report No. 104-267, 104th Cong., 2d Sess. (1996), title IX, Subtitle B, sections 911-934, "National Imagery and Mapping Agency" (Senate Report). The Defense Mapping Agency, the Central Imagery Office, the National Photographic Interpretation Center and the imagery-related functions of a number of other agencies were consolidated into NIMA. Id.
Under the legislation establishing NIMA, the Secretary of Defense may: (1) establish defense intelligence positions in NIMA and other intelligence components of the Department of Defense, including the National Security Agency and the Defense Intelligence Agency; (2) appoint individuals to those positions; and (3) "fix the compensation of such individuals[.]" 10 U.S.C. § 1601(a). The authority of the Secretary of Defense under § 1601(a) "applies without regard to the provisions of any other law relating to the appointment, number, classification, or compensation of employees." 10 U.S.C. § 1601(b). [n3] The authority of the Secretary of Defense under these provisions may be delegated. Pub. L. 97-89, § 701(b).
In establishing NIMA, Congress also directed NIMA to accord exclusive recognition to a labor organization under 5 U.S.C. § 7111 "only for a bargaining unit that was recognized as appropriate for the Defense Mapping Agency" (DMA) before employees and positions of the DMA bargaining unit became employees and positions of NIMA. 10 U.S.C. § 461(b). [n4] Further, Congress stated that if there is no obligation under the Statute for the head of an agency "to consult or negotiate with a labor organization on a particular matter by reason of that matter being covered by a provision of law or a Government[-]wide regulation," the Director of NIMA is not obligated to consult or negotiate with a labor organization on that matter "even if that provision of law or regulation is inapplicable to" NIMA. 10 U.S.C. § 461(a).
Congress also specified that nothing in § 1601 and certain other sections "may be construed to impair the continued effectiveness of a collective bargaining agreement with respect to an agency or office that is a successor to an agency or office covered by the agreement before the succession." 10 U.S.C. § 1613(a). In this regard, the Senate Committee noted that
Limited collective bargaining would be permitted in NIMA. Collective bargaining units that were recognized by the Defense Mapping Agency at the time its employees and positions were transferred to NIMA would continue to represent the same categories of employees in the NIMA, although expansion of those units or the creation of new bargaining units in NIMA would be prohibited. Positions determined at any time to be engaged in intelligence, counterintelligence, investigative, or security work directly affecting national security would be excluded, at the discretion of the NIMA Director. Permitting continuation of limited collective bargaining in NIMA would not be intended to be a precedent affecting current or future employees or agencies of the Intelligence Community. It would be a one-time solution to a unique situation.
See Senate Report.
2. NIMA's employee compensation system
Pursuant to DoD Directive Number 5105-60, October 11, 1996, the Secretary of Defense delegated his authority under 10 U.S.C. § 1601 to the Director of NIMA. In accordance with that authority, the Director of NIMA promulgated regulations establishing a compensation system for NIMA employees covered by § 1601, who had been in a bargaining unit that was previously a part of the Defense Mapping Agency. See NI 1416.2, "NIMA Instruction for WORKFORCE21 Performance Pay" (NI 1416.2). The purpose of the compensation system is to link an employee's total compensation to that employee's performance. See NI 1416.2, ¶¶ 2, 4, and 6(a)(3). "Total pay compensation" includes an employee's current salary level within [ v57 p839 ] a broad pay band, any performance based salary increase, and any one-time only bonus. See, generally, id.
The regulations provide that all NIMA employees will "initially" be considered for performance pay. Id., ¶ 8.d. Employees are assessed in terms of their "contribution." Specifically, an employee's contribution is based on "an assessment of the impact of the employee's work in relation to the employee's band, the goals of the organization, the accomplishment of the Agency's mission based strategic objectives, the complexity of the work, and the level of responsibility demonstrated by the employee." Id., ¶ 8.d.(2). Each employee's contribution is determined by the Pay Pool Managers and Pay Pool Panels. Id. The regulations prescribe three contribution levels: the employee's work (1) is "at the basic or average level in terms of responsibility, complexity, and impact"; (2) is "typically higher in responsibility, complexity, and impact"; and (3) is "consistently at maximum responsibility, complexity, and impact." Id., ¶ 8.d.(2).1., 2., 3.
Pay Pool Managers and Pay Pool Panels use a performance pay spreadsheet to determine a starting point for pay decisions. Id., ¶ 8.d.(5).(b). The factors included in the spreadsheet are the employee's performance evaluation, contribution assessment, current salary level, and the available performance pay budget. [n5] Id. Using the spreadsheet results, Pay Pool Managers and Pay Pool Panels make pay decisions "based on their judgment and related factors such as significant performance and contribution by the employee to the organization and NIMA, recent promotions, or long-term full-time training." Id., ¶ 8.d.(5).(c). All such determinations, and the underlying rationale, must be documented. Id.
The regulations provide that the "focus of salary adjustments is on the total pay compensation, not the salary increase itself." Id., ¶ 8.d.(3). The criterion is "whether the employee has been compensated appropriately," given such considerations as the employee's current salary level within the pay band and labor market rates for a given occupation. [n6] Id. Performance pay increases may include a base pay increase only, or a performance bonus only, or a combination of the two. Id., ¶ 8.d.(5).(a). The base pay increase to salary would be in addition to any general pay increase given to all employees consistent with the general government-wide pay increase for General Schedule employees.
Employees can seek reconsideration of a determination by the Pay Pool Managers and Pay Pool Panel of the amount of their performance pay, but only as to an "alleged procedural error not involving the standards used, or the judgments and evaluations made." Id., ¶ 8.h. The determinations of the Pay Pool Managers and Pay Pool Panel as to an employee's contribution level are not subject to review through the administrative grievance procedure. Id.
B. Arbitrator's Award
Four employees covered by NI 1416.2 filed grievances under the negotiated grievance procedure challenging the contribution level assigned each of the grievants. In particular, the grievances alleged that Pay Pool Managers and Pay Pool Panels "misinterpreted information and/or failed to consider information necessary to accurately assess and place" the grievants "in a contribution level" which is consistent with NI 1416.2. The grievances requested that the grievants be placed in a contribution level exceeding contribution level one, the level to which they had been assigned.
The Agency denied the grievances on the ground that they were not grievable or arbitrable under title 10 of the United States Code.
The Arbitrator noted at the outset that, although the grievants had been subject to title 5 of the United States Code prior to the creation of NIMA, they were no longer. Rather, according to the Arbitrator, the grievants were now subject to title 10 and title 10 afforded the Agency "wide latitude" in formulating its own personnel system. Award at 3. The Arbitrator also noted, however, that the grievants had been members of collective bargaining units covered by negotiated agreements before the establishment of NIMA and, under title 10, they continued to have access to the grievance procedures of those agreements.
Before the Arbitrator, the Agency asserted that, under title 10, it has unfettered discretion to determine employee compensation and, therefore, salary decisions under the performance pay provisions of NI 1416.2 are not reviewable through the negotiated grievance procedure. In this regard, the Agency maintained that determination of an employee's contribution level is tantamount to determining that employee's salary level. Specifically, the Agency distinguished performance evaluations under the performance management system [ v57 p840 ] from determination of contribution levels under the performance pay system.
According to the Arbitrator, the Union did not dispute the Agency's discretion to determine matters pertaining to employee compensation. Rather, the Union took the position that once the Agency exercised its discretion to establish the performance pay system in NI 1416.2, "the Agency's misuse of" that system "is grievable." Award at 9. As stated by the Arbitrator, the Union contended that the grievances do not concern the system itself, but, rather, the fact that the Agency has "used it inappropriately, disregarded it, and/or used it badly." [n7] Id.
In resolving the arbitrability of the grievances, the Arbitrator noted particularly the Agency's reliance on AFGE, Local 3295, 47 FLRA 884 (1993) (Office of Thrift Supervision), aff'd sub nom. AFGE, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir. 1995) (AFGE, Local 3295). In Office of Thrift Supervision, the Authority held that, under 12 U.S.C. § 1462a(g), the Director of the Office of Thrift Supervision had sole and exclusive discretion to determine the compensation of its employees and did not have to bargain on pay-setting proposals. The Arbitrator found that the wording of § 1462a(g) in that case and § 1601 in this case were "almost identical." Award at 45. The Arbitrator also found that, despite its claim that § 1601 did not provide the Agency unfettered discretion to fix compensation, the Union did not challenge the Agency's actions in establishing the performance pay system.
The Arbitrator next examined the nature and scope of that discretion. The Arbitrator noted that, in Office of Thrift Supervision, the Authority had relied on the legislative history of § 1462a(g) to determine the scope of the agency's discretion under that provision. The Arbitrator found that the Agency had not presented "any evidence with regard to legislative history of § 1601 to enforce its interpretation[.]" Award at 48.
Moreover, the Arbitrator noted that the proposals at issue in Office of Thrift Supervision concerned the "amount" of employee compensation, while the grievances in this case concern the contribution level assigned to the four grievants. Id. Noting the Union's position that the grievances concern the application of NI 1416.2, the Arbitrator found that, although performance ratings are used for different purposes, under that regulation they are also a major consideration in determining eligibility for performance pay. Because, as the Agency acknowledged, employees can grieve their performance ratings, and thus could change their eligibility for performance pay, the Arbitrator found that such a grievance is "not distinguishable" from employees grieving their assigned contribution level. Id. at 49.
Finally, the Arbitrator considered the effect of § 1613, which provides that nothing in § 1601, among other provisions, should be "construed to impair the continued effectiveness of a collective bargaining agreement" with respect to a successor agency. In this regard, the Arbitrator stated his "very strong opinion" that "if an employee were refused the opportunity to file a grievance regarding a decision on his/her contribution level under the performance pay program, this would 'impair the continued effectiveness'" of the parties' existing collective bargaining agreement. Id.
Specifically, the Arbitrator noted that the grievance procedure in the parties' agreement extends to complaints concerning violations of law, rule, or regulation affecting conditions of employment. The Arbitrator found that, as NI 1416.2 constitutes a rule or regulation affecting conditions of employment, violations of that regulation fell within the scope of the grievance procedure. The Arbitrator concluded that if Congress had intended to preclude grievances over an employee's contribution level, it would not have preserved the effectiveness of bargaining agreements under § 1613. In particular, the Arbitrator found that § 1613 includes § 1601 as a provision "that was specifically covered by the 'continued effectiveness of a collective bargaining agreement.'" Id. at 51.
Accordingly, the Arbitrator concluded that "the Agency has failed to provide sufficient proof that" the grievances "are not arbitrable" under the parties' collective bargaining agreement. Id. The Arbitrator ordered that the grievances be presented to him for resolution based on their respective merits. [ v57 p841 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency states that its employees are not subject to the pay schedules established by title 5 of the United States Code. Rather, the Agency contends that, under title 10, it has unfettered discretion to determine employee compensation and the performance pay system under NI 1416.2 "is the program used by the [A]gency to determine the amount of compensation that an employee will receive." Exceptions at 2. Under that system, "[t]he contribution level assigned an employee is only one of many factors that determine . . . compensation." Id. at 4.
Specifically, the Agency asserts that the terms used by Congress in § 1601--that the Agency has the authority to fix the compensation of its employees "without regard to the provisions of any other law"--are terms that in other statutes have been interpreted by the Authority and the courts to provide an agency with sole and exclusive authority. Id. at 6-8, citing Office of Thrift Supervision and AFGE, Local 3295. According to the Agency, "Congress was aware of the interpretation placed by the courts and the [Authority] on" those terms "when it included [those terms] in [§] 1601." Id. at 9. The Agency claims that Congress therefore intended it to have "unfettered discretion to set the compensation of [A]gency employees." Id.
In addition, the Agency asserts that § 461(a) "essentially means that the [A]gency is not required to bargain over any subject that would be non-negotiable for an agency subject to" title 5 of the United States Code. Id. at 10. The Agency states that agencies covered by the salary schedules of title 5 "are not required to bargain over, or accept grievances concerning, employee compensation because employee compensation is fixed by statutory schedules." Id. According to the Agency, because NIMA employees, such as the grievants in this case, could not bargain about or grieve the level of their compensation when they were covered by title 5, under § 461(a) they cannot do so now.
Finally, the Agency disputes the Arbitrator's conclusion that a finding that the grievances in this case are nonarbitrable would impair the continued effectiveness of the parties' collective bargaining agreement. According to the Agency, "the unfettered discretion that [§] 1601 gives the [A]gency to fix the compensation of its employees does not change the terms" of the parties' agreement. Id. at 12. The Agency asserts that the Arbitrator failed to recognize that "a grievance or arbitration of the contribution level is really a grievance or arbitration over the employee's compensation" and that employees were not previously able to grieve their compensation level under that agreement because it was set by the salary schedules under title 5.
B. Union's Opposition
According to the Union, the Agency's position is that any third-party alteration in the contribution level would interfere with the Agency's unfettered discretion to determine employee compensation. In contrast, the Union claims that the broad scope of the grievance procedure in the parties' agreement permits grievances based on "the misapplication and/or misinterpretation" of Agency regulations such as NI 1416.2. Specifically, the Union asserts, management's failure to adhere to NI 1416.2 is grievable.
IV. Analysis and Conclusions
The Agency excepts to the Arbitrator's award under section 7122(a)(1) of the Statute on the grounds that it is contrary to 10 U.S.C. §§ 461(a) and 1601. When a party's exception challenges an arbitration award's consistency with law, the Authority reviews the question of law raised in the exception and the arbitrator's award de novo. See, e.g., NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See, e.g., NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
The grievances in this case allege that the employees were placed in a lower contribution level than they should have been. It is undisputed that the only use of an employee's contribution level under the compensation system established by the Agency is to help determine the employee's total compensation, which also includes the employee's current salary level and any bonuses. Thus, the higher the contribution level, the higher the employee's total compensation. The question before us is whether the determination of an employee's contribution level is a matter that Congress intended to be solely and exclusively within the Agency's discretion to decide, or whether Congress intended such a determination to be subject to an arbitrator's review under the negotiated grievance and arbitration procedure established pursuant to § 7121 of the Statute. For the reasons set forth below, we find that Congress intended the determination of an employee's contribution level to be [ v57 p842 ] a matter solely and exclusively within the Agency's discretion to decide.
As described above, the Secretary of Defense delegated his authority under § 1601 to the NIMA Director, and the NIMA Director implemented the compensation system involved in this case. In our view, Congress intended this statutory authority to be exercised without being subjected to review by arbitrators. Congress stated that the authority to appoint individuals and fix their compensation applies without regard to the provisions of any other law relating to the appointment, number, classification, or compensation of employees. This statement signifies a clear desire that determinations regarding the appointment and compensation of individuals were to remain within the sole and exclusive discretion of the Secretary of Defense or the Secretary's designee.
Review by arbitrators of such determinations is incompatible with this expansive discretion. In our view, it would have been incongruous for Congress to have indicated its intent to provide such far-ranging discretion in the Secretary of Defense, yet to have permitted individuals to challenge their contribution levels (and hence their compensation) through a negotiated grievance and arbitration procedure established under § 7121 of the Statute. Nothing in the law establishing NIMA or in its legislative history suggests that Congress intended such an outcome. Rather, the more compelling and reasonable statutory construction is that in permitting the Secretary to exercise his discretion to appoint individuals and fix their compensation without regard to any other law relating to appointment, number, classification, or compensation of employees, Congress intended to allow this authority to be exercised without being subject to the arbitral review inherent in the negotiated grievance and arbitration process under § 7121 of the Statute. [n8]
In this respect, and contrary to the Arbitrator's conclusion in this case, § 1613(a) provides no support at all for a determination that the grievances are arbitrable. As relevant here, § 1613(a) provides only that nothing in § 1601 may be construed to impair the effectiveness of a collective bargaining agreement with respect to an agency or office that is a successor to an agency or office covered by the agreement before the succession. As explained by the Committee, this provision simply recognized that limited collective bargaining would be permitted in NIMA to the extent that units that were previously recognized by the Defense Mapping Agency would continue after their transfer to NIMA.
Nothing in § 1613(a) or its legislative history suggests that in that provision Congress was addressing the negotiability or grievability of subject matters of collective bargaining. [n9] In contrast, where Congress did intend to provide substantive entitlements regarding personnel matters under title 5 of the U.S. Code to employees of NIMA and other defense intelligence agencies, it did so expressly in the same legislation. See 10 U.S.C. § 1612 (discussing applicability of merit system principles and civil service protections of § 2302 and Chapter 75 of title 5). In particular, we find nothing in § 1613(a) or its legislative history to indicate that Congress intended to permit NIMA employees to have access to negotiated grievance and arbitration procedures to challenge any aspect of compensation determinations, including employees' contribution levels. Such a conclusion would be at odds with the limited collective bargaining Congress authorized.
Finally, even if Congress had been addressing the substance of collective bargaining agreements in § 1613(a) rather than simply permitting the continued existence of previously existing bargaining units from DMA, grievances over compensation would nevertheless be precluded. Under 10 U.S.C. § 461, matters that were not bargainable under law and regulation prior to the establishment of NIMA are not bargainable after its establishment, even if the law and regulation are no longer applicable to NIMA. It is undisputed that prior to the creation of NIMA, the exclusive representative of DMA employees could not bargain or grieve employees' salary levels. Therefore, by operation of 10 U.S.C. § 461, the exclusive representative of NIMA employees is not now able to bargain or grieve employees' salary levels. Stated otherwise, the fact that the grievances in this case are not arbitrable does not impair the continued effectiveness of the parties' collective bargaining agreement within the meaning of § 1613(a), since the grievances were not arbitrable prior to the creation of NIMA. In the absence of DMA employees being able to grieve disputes about their compensation levels under the DMA collective bargaining agreement, there is no basis on which to conclude that Congress intended to allow NIMA employees to do so under their agreement. [ v57 p843 ]
Accordingly, the Arbitrator's conclusion that the continued effectiveness of the parties' collective bargaining agreement would be impaired if an employee were refused the opportunity to file a grievance regarding a decision on his/her contribution level under the performance pay program is without support.
In sum, the statutory framework establishing NIMA, in particular § 1601 and § 461(a), establishes that Congress did not intend to permit compensation disputes, including disputes over whether an employee was assigned an appropriate contribution level, to be subject to the negotiated grievance and arbitration process established by § 7121 of the Statute. Regardless of the manner in which the grievances in this case are characterized, in the end they amount to an intrusion into an area--the determination of employee compensation--that Congress reserved to the sole and exclusive discretion of the Secretary of Defense or the Secretary's designee. [n10]
For the foregoing reasons, we conclude that determinations of employee compensation pursuant to 10 U.S.C. § 1601 are not subject to the parties' grievance and arbitration procedures, negotiated pursuant to § 7121 of the Statute, and, as a matter of law, are not arbitrable. The Arbitrator's determination that the grievances are arbitrable is, therefore, contrary to law within the meaning of § 7122(a)(1) of the Statute.
Accordingly, we will set aside the award.
The award is set aside.
1. 10 U.S.C. § 461 provides as follows:
§ 461. Management rights
(a) Scope.--If there is no obligation under the provisions of chapter 71 of title 5 for the head of an agency of the United States to consult or negotiate with a labor organization on a particular matter by reason of that matter being covered by a provision of law or a Government[-]wide regulation, the Director of the National Imagery and Mapping Agency is not obligated to consult or negotiate with a labor organization on that matter even if that provision of law or regulation is inapplicable to the National Imagery and Mapping Agency.
(b) Bargaining units.--The National Imagery and Mapping Agency shall accord exclusive recognition to a labor organization under section 7111 of title 5 only for a bargaining unit that was recognized as appropriate for the Defense Mapping Agency on the day before the date on which employees and positions of the Defense Mapping Agency in that bargaining unit became employees and positions of the National Imagery and Mapping Agency under the National Imagery and Mapping Agency Act of 1996 (title XI of the National Defense Authorization Act for Fiscal Year 1997).
(c) Termination of bargaining unit coverage of position modified to affect national security directly.-- (1) If the Director of the National Imagery and Mapping Agency determines that the responsibilities of a position within a collective bargaining unit should be modified to include intelligence, counterintelligence, investigative, or security duties not previously assigned to that position and that the performance of the newly assigned duties directly affects the national security of the United States, then, upon such a modification of the responsibilities of that position, the position shall cease to covered by the collective bargaining unit and the employee in that position shall cease to be entitled to representation by a labor organization accorded exclusive recognition for that collective bargaining unit.
(2) A determination described in paragraph (1) that is made by the Director of the National Imagery and Mapping Agency may not be reviewed by the Federal Labor Relations Authority or any court of the United States. [ v57 p844 ]
2. 10 U.S.C. § 1601 provides as follows:
§ 1601. Civilian intelligence personnel: general authority to establish excepted positions, appoint personnel, and fix rates of pay
(a) General authority.--The Secretary of Defense may--
(1) establish, as positions in the excepted service, such defense intelligence positions in the Department of Defense as the Secretary determines necessary to carry out the intelligence functions the Department, including-
(A) Intelligence Senior Level positions designated under section 1607 of this title; and
(B) positions in the Defense Intelligence Senior Executive Service;
(2) appoint individuals to those positions (after taking into consideration the availability of preference eligibles for appointment to those positions); and
(3) fix the compensation of such individuals for service in those positions.
(b) Construction with other laws.--The authority of the Secretary of Defense under subsection (a) applies without regard to the provisions of any other law relating to the appointment, number, classification, or compensation of employees.
3. 10 U.S.C. § 1613(a) provides as follows:
§ 1613. Miscellaneous provisions
(a) Collective bargaining agreements.--Nothing in sections 1601 through 1603 and 1606 through 1610 may be construed to impair the continued effectiveness of a collective bargaining agreement with respect to an agency or office that is a successor to an agency or office covered by the agreement before the succession.
4. 12 U.S.C. § 1462a(g), provided, in relevant part, as follows:
(1) Appointment and compensation
The Director shall fix the compensation and number of, and appoint and direct, all employees of the Office of Thrift Supervision notwithstanding section 301(f)(1) of Title 31. Such compensation shall be paid without regard to the provisions of other laws applicable to officers or employees of the United States.
(2) Rates of basic pay
Rates of basic pay for employees of the Office may be set and adjusted by the Director without regard to the provisions of chapter 51 or subchapter III of chapter 53 of title 5.
(The provision is currently designated 12 U.S.C. § 1462a(h)).
File 1: Authority's Decision in 57 FLRA No.
181 and Appendix
File 2: Opinion of Member Pope
Footnote # 1 for 57 FLRA No. 181 - Authority's Decision
Footnote # 2 for 57 FLRA No. 181 - Authority's Decision
The Agency's exceptions are interlocutory because the Arbitrator's award is not a final disposition of the issues submitted to him. In this regard, we note that, at the conclusion of his award, the Arbitrator ordered the grievances to be presented to him for resolution on their respective merits. Although the Authority does not generally resolve interlocutory exceptions, we find that the circumstances of the case warrant consideration of the Agency's exceptions at this time because they raise an issue as to whether the Arbitrator lacked jurisdiction as a matter of law. See United States Dep't of the Interior, Bur. of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1232 (2000) (interlocutory review is appropriate "where the arguments challenging an award in fact present a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of the case").
Footnote # 3 for 57 FLRA No. 181 - Authority's Decision
Footnote # 4 for 57 FLRA No. 181 - Authority's Decision
Congress also provided that if the Director of NIMA determined that the responsibilities of a bargaining unit position should be modified to include certain duties and the performance of those duties directly affects the national security, the position shall cease to be part of the unit and the employee in that position shall not be entitled to representation by the exclusive representative. See 10 U.S.C. § 461(c)(1). Such a determination by the Director of NIMA may not be reviewed by the Authority or any court of the United States. See 10 U.S.C. § 461(c)(2).
Footnote # 5 for 57 FLRA No. 181 - Authority's Decision
It is clear from the regulations, generally, that the performance evaluation referred to is the supervisory evaluation under the performance management system and is separate from, though not unrelated to, the contribution assessment.
Footnote # 6 for 57 FLRA No. 181 - Authority's Decision
Footnote # 7 for 57 FLRA No. 181 - Authority's Decision
The Union also argued to the Arbitrator that the Agency had negotiated in bad faith on the implementation of NI 1416.2 and that the Secretary had not delegated unfettered discretion regarding compensation matters to the Director of NIMA. The Arbitrator ruled against the Union on both arguments and the Union does not except to those rulings. Consequently, they will not be addressed in this decision.
Footnote # 8 for 57 FLRA No. 181 - Authority's Decision
In a related context, the United States Court of Appeals for the District of Columbia Circuit held that an agency's discretion to summarily terminate probationary employees could not be subjected to arbitration. See NTEU v. FLRA, 848 F.2d 1273, 1275 (D.C. Cir. 1988).
Footnote # 9 for 57 FLRA No. 181 - Authority's Decision
Footnote # 10 for 57 FLRA No. 181 - Authority's Decision
Our conclusion is consistent with existing precedent addressing similar statutory provisions. Where a statutory provision pertaining to a given subject matter provides for the matter to be determined "notwithstanding" or "without regard to" any other law, the provision affords agency officials "sole and exclusive discretion" to determine that subject matter. See, e.g., Office of Thrift Supervision (sole and exclusive discretion to fix compensation); Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988) (sole and exclusive discretion to fix work schedules); Colorado Nurses Assoc. v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses) (sole and exclusive discretion to determine conditions of employment). The exercise of such discretion is not subject to grievance and arbitration procedures negotiated under the Statute. See Colorado Nurses, 851 F.2d at 1487 and 1489 (statutory phrase "notwithstanding any law" indicates that VA chief "is to be unhampered by . . . federal [laws] that might otherwise constrain his authority" to determine conditions of employment of professional medical employees, including law providing for negotiated grievance procedure). See also AFGE, Local 3258, 53 FLRA 1320, 1326 (1998); United States Dep't of Veterans Affairs, Medical Center, Danville, Ill., 34 FLRA 131, 134-35 (1990).