General Services Administration, Northeast and Caribbean Region, New York, New York (Agency) and American Federation of Government Employees, Council 236 (Union)

[ v60 p452 ]

60 FLRA No. 89







November 30, 2004


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joan Ilivicky 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.

      For the reasons that follow, we find that the Arbitrator's award is moot, and we set it aside.

II.     Background and Arbitrator's Award

      During negotiations with the Union over incentive awards, the Agency's New York assistant regional administrator prepared and distributed a memorandum to public building service division directors and service center directors advising them of the status of the negotiations and commenting on the conduct of the Union during the negotiations. A notation on the memorandum noted that it contained sensitive labor relations information and that it was for managers, supervisors and leaders only. Notwithstanding the notation, an agency employee posted a copy of the memorandum on the Agency's e-mail for viewing by all agency employees.

      The Union filed a grievance charging the assistant regional administrator with libel and slander. The Agency claimed that the grievance was not arbitrable. In accordance with the parties' collective bargaining agreement, the Agency asked for a separate hearing to decide the arbitrability issue before a hearing on the merits of the grievance. Consequently, the grievance was submitted to arbitration on the sole issue of whether the grievance was arbitrable.

      Before the Arbitrator, the Agency contended that the grievance was not arbitrable under 28 U.S.C. § 2680(h). [n2]  The Agency maintained that the assistant administrator was acting within the scope of his employment when he wrote and distributed the memorandum and that consequently, this matter is subject to the exclusive jurisdiction of the federal courts.

      The Arbitrator agreed with the Agency that this matter would not be arbitrable because of the exclusive jurisdiction of the federal courts if the assistant administrator were acting within the scope of his employment. See Award at 16, 18. However, on the facts presented, she ruled that whether the assistant administrator had acted within the scope of his employment was an unresolved issue of fact that required an arbitration hearing. She found that the Agency's arguments and evidence were insufficient to resolve that question. She concluded that libelous and slanderous statements made by federal employees that are not within the scope of their employment are arbitrable, but that such statements made within the scope of employment are not. Accordingly, she ruled that the grievance was arbitrable to this extent and ordered a hearing on the issue of whether the assistant administrator was acting within the scope of his employment. She found that this result was also supported by the parties' agreement because the assistant administrator's statements may have constituted a violation of the right of unit employees to be treated fairly and without fear of reprisal. [ v60 p453 ]

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is contrary to law and fails to draw its essence from the parties' agreement.

      Initially, the Agency states that its exceptions are interlocutory and acknowledges that ordinarily the Authority will not consider interlocutory appeals. However, the Agency asserts that its exceptions should be resolved by the Authority because they raise a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of this case.

      On the merits, the Agency asserts that there is overwhelming support for its position that a claim of libel is not arbitrable. The Agency also argues that the parties' agreement does not support the award.

B.     Union's Opposition

      The Union contends that the Agency's exceptions provide no basis for finding the award deficient.

IV.     Supplemental Order

      In a supplemental filing, the Agency asserted that this matter is moot. The Agency stated that after it filed exceptions to the award, the Union president filed a lawsuit in state court against the assistant administrator claiming that the assistant administrator libeled him in the memorandum. The Agency further stated that the United States removed the case to the United States District Court for the Southern District of New York and filed a motion to substitute the United States as the defendant for the assistant administrator and that the matter is pending before that court. The motion to substitute the United States as defendant was based on the certification by the United States Attorney for the Southern District of New York pursuant to authority of the United States Attorney General that the assistant administrator was acting within the scope of his employment with respect to the memorandum.

      The Authority directed the Union to reply to the Agency's supplemental submission. The Union filed a reply.

      In its reply, the Union maintains that it has two causes of action. One is for monetary relief in court. The other is its grievance. The Union asserts that only the grievance procedure can provide the remedy of ordering the Agency to retract the memorandum that is still accessible on the internet. Thus, the Union suggests that the court action is not relevant to the grievance and the Arbitrator's award and that it has a legal interest in proceeding in both forums.

V.     Decision of the United States District Court

      On August 25, 2004, the U.S. district court granted the motion to substitute the United States as the defendant for the assistant administrator and granted the defendant United States' motion to dismiss. See Tomscha v. Greenberg, 2004 WL 1878749 (S.D.N.Y.). The court noted that a scope-of-employment certification is subject to de novo review, but that to trigger this review "a plaintiff must `allege with particularity facts relevant to the scope-of-employment issue.'" Id. (quoting McHugh v. Univ. of Vermont, 966 F.2