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

GENERAL SERVICES ADMINISTRATION
NORTHEAST AND CARIBBEAN REGION
NEW YORK, NEW YORK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 236
(Union)

0-AR-3779

_____

DECISION

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.2d 67, 74 (2d Cir. 1991)). In granting the motion to substitute, the court held that no judicial review of the scope-of-employment certification was required because the plaintiff did not allege with particularity facts relevant to the certification. The court added that even if such review were necessary, the evidence demonstrated that the administrator was acting within the scope of his employment. Accordingly, the court ruled that the United States Attorney General correctly certified that the administrator was acting within the scope of his employment. Once the court granted the motion to substitute, the court granted the defendant United States' motion to dismiss for lack of subject matter jurisdiction because the express language of the Federal Tort Claims Act bars a suit for money damages against the United States based on a claim of libel. See id.

VI.     Analysis and Conclusions

A.     Threshold Issue

      Although the exceptions are interlocutory, we find, for the reasons stated below, that the Agency has presented a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of this case. Accordingly, we will consider the exceptions. See United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 59 FLRA 64, 66-67 (2003).

B.     Mootness

      An arbitration matter becomes moot when the parties no longer have a legally cognizable interest in the dispute. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, Puerto Rico, 59 FLRA 787, 790 (2004). Under the express terms of the Arbitrator's award, the Union no longer has a legally cognizable interest in the arbitration dispute in view of the court's decision in Tomscha v. Greenberg that the assistant administrator was acting within the [ v60 p454 ] scope of his employment with respect to the memorandum. [n3] 

      The Arbitrator found, and the Union does not dispute, that this matter is not arbitrable if the assistant administrator was acting within the scope of his employment. [n4]  The court's decision, which is final, has resolved this issue by finding that the assistant administrator was acting within the scope of his employment. Consequently, by the express terms of the Arbitrator's award, this dispute is not arbitrable. Accordingly, the Arbitrator's award directing factfinding on the scope-of-employment issue is moot, and we set it aside. [n5]  See United States Dep't of the Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base, Tex., 58 FLRA 71, 72 (2002); United States Dep't of the Army Headquarters, III Corps and Fort Hood, Fort Hood, Tex., 56 FLRA 1121, 1122 n.2 (2001).

VII.     Decision

      The award is set aside.


File 1: Authority's Decision in 60 FLRA No. 89
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 60 FLRA No. 89 - Authority's Decision

   Chairman Cabaniss' separate opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 89 - Authority's Decision

   Section 2680(h) provides that the Federal Tort Claims Act and the Federal Employees Liability Reform and Tort Compensation Act do not apply to "[a]ny claim arising out of . . . libel [or] slander[.]" The Federal Employees Liability Reform and Tort Compensation Act amended 28 U.S.C. § 2679 and established absolute immunity for federal employees for torts committed in the scope of their employment by making a Federal Tort Claims Act lawsuit against the Federal Government the exclusive remedy for such torts. See 28 U.S.C. § 2679; United States v. Smith, 499 U.S. 160, 163 (1991); NFFE Local 1655, 39 FLRA 1087, 1100-01 (1991).


Footnote # 3 for 60 FLRA No. 89 - Authority's Decision

   We take administrative notice that no appeal was taken of the court's decision and, as a result, it is final. See Fed. R. App. P. 4(a)(1)(B) (when the United States is a party, notice of appeal must be filed within 60 days after the judgment is entered).


Footnote # 4 for 60 FLRA No. 89 - Authority's Decision

   The Arbitrator conceivably could have found that