United States, Department of the Interior, National Park Service, Gettysburg National Military Park (Agency) and American Federation of Government Employees, Local 3145 (Union)

[ v61 p849 ]

61 FLRA No. 170

UNITED STATES
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
GETTYSBURG NATIONAL MILITARY PARK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3145
(Union)

0-AR-4052

_____

DECISION

October 26, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Stanley J. Schwartz filed by the Agency under § 7122 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 Authority issued an Order to Show Cause why the Agency's exceptions should not be dismissed for lack of jurisdiction. The Agency filed a response to the Order and the Union filed a request to file a reply to the Agency's response, as well as the reply, itself. [n2] 

      The Arbitrator held that the Agency did not have just cause to revoke the grievant's law enforcement commission. He ordered that the commission be reinstated, that the grievant be reimbursed for lost salary and benefits, and that all references to the revocation be expunged from the grievant's personnel records. For the reasons set forth below, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      The grievant was employed by the Agency as a park ranger in a position that required that he maintain a law enforcement commission. [n3]  In January 2002, the Agency instituted an investigation concerning an allegation by his supervisor that the grievant had backdated a document that he submitted to the supervisor. A Board of Inquiry considered the allegation and concluded that the grievant had "made an untruthful statement in a written communication pertaining to his official duties." Agency Ex. 4 at 3. The Board recommended that the grievant's commission be revoked and that he be placed in "a suitable non-commissioned position[.]" Id. at 4. The Agency implemented the Board's recommendation concerning the grievant's commission in July 2002. The Union subsequently filed a grievance, contesting the revocation of the grievant's commission (the commission grievance).

      In September 2002, the Agency proposed to terminate the grievant's employment based, as relevant here, on the loss of his commission. The Union subsequently filed two unfair labor practice (ULP) charges against the Agency, one contending that the termination of the grievant had been proposed in retaliation for protected activity and the other alleging that that the Agency had refused to participate in arbitration concerning the commission grievance. While these charges were pending, the Agency terminated the grievant's employment. The grievant filed a second grievance, challenging the termination, which was referred to arbitration (the termination grievance).

      In September 2004, Arbitrator Kinard Lang resolved the termination grievance. Union Ex. 7. As relevant here, [n4]  Arbitrator Lang concluded that the Agency "unreasonably denied the Grievant access to the negotiated grievance procedure to appeal [the] revocation of his commission" and that the "[g]rievant's resort to Union representation" resulted in a "hostile attitude" on the part of Agency management. Id. at 11. According to the Arbitrator, this hostile attitude caused the Agency to refuse to follow the recommendation of the Board of Inquiry that the grievant be placed in a position that did not require a commission. Id. Next, Arbitrator Lang concluded that there was not just cause for the grievant's [ v61 p850 ] removal, in light of the Douglas factors. [n5]  He ordered that the Agency "assist with the placement of [the grievant] in a suitable non-commissioned position" within 60 days and awarded the grievant back pay. Id. at 12.

      In July 2003, while the termination grievance was pending, the parties settled the ULP charge concerning the Agency's failure to arbitrate the commission grievance, with the Agency agreeing to arbitrate the matter. Union Ex. 5. The grievance was then submitted to arbitration and, as relevant here,  [n6]  the Arbitrator stated the issues to be:

Did the Agency have cause to revoke the grievant's law enforcement commission? If not, what shall be the remedy?

Award at 2.

      The Arbitrator concluded that, while the grievant admitted that he knowingly made an untruthful statement, the "real issue" in the case was "whether the Agency has been consistent in its approach to revoking law enforcement commissions . . . ." Award at 5. The Arbitrator noted the Union's contention that two particular employees (hereinafter, the two employees) had been "involved in comparable situations as serious as" the grievant's and that the Board of Inquiry did not revoke their law enforcement commissions, resulting in far lesser penalties than the grievant's. Id. The Arbitrator found the Union's contentions to be persuasive on this issue. He noted that the Agency had responded that records concerning the two employees were not available and were, in any event, irrelevant, but that the Agency had not denied that the two employees did not lose their commissions. As his award, the Arbitrator directed the Agency to reinstate the grievant's law enforcement commission retroactive to the date it was revoked, pay back pay, and expunge the grievant's personnel records of references to the revocation.

III.     Positions of the Parties

A.     Agency Exceptions

      The Agency asserts that the award is based on a nonfact. In this regard, the Agency argues that there was no evidence in the record to support the Arbitrator's conclusion that the two employees engaged in misconduct, were subject to a Board of Inquiry, and retained their law enforcement commissions. According to the Agency, the sole basis for this finding is an unsupported assertion in stipulations proposed by the Union, with which the Agency did not agree.

      The Agency next claims that the award is contrary to law. In this connection, the Agency asserts that the Arbitrator's finding that the grievant should have been treated in the same manner as the other two employees "applied, in a rather remote way, a Title VII analysis[.]" Exceptions at 6. According to the Agency, a finding of disparate treatment under Title VII would be contrary to law, because the grievant did not establish a prima facie case of discrimination, as required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (McDonnell Douglas).

      The Agency further argues that the Arbitrator was "unfair to both parties in failing to clearly state a standard of review." Id. The Agency asserts that, because of this failure, it could not effectively defend itself.

      Finally, the Agency asserts that the award does not draw its essence from the parties' collective bargaining agreement because the Arbitrator ignored the standard contained in Article 13 of the parties' agreement that discipline will be taken to "promote the efficiency of the service." [n7]  Exceptions at 7. According to the Agency, the Arbitrator's statement that the issue in the case is "whether the Agency has been consistent in its approach to revoking law enforcement commissions" modifies the contractual standard. Id., (quoting Award at 5.) Further, the Agency argues that the Arbitrator's statement that "[i]t is clear that the collective bargaining agreement is a vehicle by which the parties guarantee that all employees will be treated the same" is not based on the agreement, and is entirely unfounded in reason and fact. Id.

B.      Union Opposition

      The Union first argues that the Authority lacks jurisdiction over the Agency's exceptions pursuant to § 7122(a) and § 7121(f) of the Statute. In this regard, the Union asserts that the revocation of the grievant's commission and his consequent reassignment to a different position resulted in a reduction in his basic pay, which is an adverse action within the coverage of 5 U.S.C. § 7515. As such, the Union contends that this matter is subject to review by the United States Court of Appeals for the Federal Circuit, rather than by the Authority. The Union also alleges that the Agency attempted to frustrate the grievant's exercise of his rights by "forcing him to `piecemeal' grieve inter-related [ v61 p851 ] aspects of its unlawful personnel actions." Opposition at 4.

      With respect to the Agency's nonfact claim, the Union argues that the Arbitrator relied on competent evidence, consisting of the grievant's testimony, concerning the discipline of the two employees. With respect to the Agency's argument that the award is contrary to law, the Union contends that the Arbitrator did not employ a Title VII analysis. Rather, the Union asserts that the Arbitrator's focus on the consistency of the discipline of the grievant and other employees simply employed the standard for determining the appropriateness of a penalty set out in Douglas v. Veterans Administration, 5 MSPR 280 (1981) (Douglas). Finally, the Union argues that the Agency's claim that the award does not draw its essence from the collective bargaining agreement confuses the "just cause" issue before the arbitrator with the standard for resolving that issue, which includes whether penalties are consistent. Opposition at 7. Further, the Union asserts that the parties' agreement does not provide for a specific standard of proof, and that under Authority precedent, the Arbitrator had the discretion to establish the standard of proof. Id. at 8, citing, AFGE, Local 2, 48 FLRA 1394 (1994). [n8] 

IV.     Order to Show Cause and the Parties' Responses

      In its response to the Authority's order to show cause why its exceptions should not be dismissed for lack of jurisdiction, the Agency asserts that the subject matter of the grievance involved only the loss of the grievant's law enforcement commission and not his reassignment to a new position. In this regard, the Agency contends that the grievance over the loss of the grievant's commission was filed on August 6, 2002 and the reassignment action was not effective until a later date. Response to Order to Show Cause at 2, Ex. 4. The Agency argues that, in raising the reassignment issue in its exceptions, the Union is improperly altering the grievance. The Agency further argues that, even if the reassignment and subsequent loss of pay are taken into account, the Authority has jurisdiction over the matter because the loss of special law enforcement pay is not an "adverse action for the purposes of . . . part 752" of Title V. Agency Response at 3, citing 5 C.F.R. § 531.304(j).

      In its reply, the Union argues that the grievance encompassed any adverse actions inextricably entwined with and directly flowing from the revocation of the grievant's commission. The Union asserts that the consequence of the Agency's action in revoking the commission was a "removal and/or reduction in pay," because the Agency's regulations required that an employee whose law enforcement commission is revoked be removed from the position requiring the commission. Union Reply at 4. The Union also contends that the removal of a law enforcement commission, itself, constitutes an adverse action under Chapter 75. The Union argues that the OPM regulation which provides that the loss of a commission is not an adverse action under that chapter, 5 C.F.R. § 531.304(j), does not address the loss of pay resulting from the action.

V.     Analysis and Conclusions

A.      The Authority has jurisdiction over the exceptions.

      Under § 7122(a) of the Statute, the Authority lacks jurisdiction to review an arbitration award "relating to a matter described in section 7121(f)" of the Statute. The matters described in § 7121(f) include adverse actions, which are covered under 5 U.S.C. § 4303 or § 7512. [n9]  See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Det. Ctr., Miami, Fla., 57 FLRA 677, 678 (2002) (BOP, Miami). Arbitration awards resolving such matters are reviewable by the United States Court of Appeals for the Federal Circuit, rather than the Authority. See 5 U.S.C. § 7121(f) and § 7703.

      The Authority will determine that an award relates to a matter described in § 7121(f) when it resolves, or is inextricably intertwined with, a § 4303 or § 7512 matter. See United States Dep't of Transp., Fed. Aviation Admin., 57 FLRA 580, 581 (2001) (FAA). In making that determination, the Authority looks not to the outcome of the award, but to whether the claim advanced in arbitration is one reviewable by the Merit Systems Protection Board (MSPB) and, on appeal, by the Federal Circuit. See BOP, Miami, 57 FLRA at 678.

      The instant grievance alleged that the Agency improperly terminated the grievant's law enforcement commission. The termination of a law enforcement commission is not an action included in the list of "adverse actions" appealable to the MSPB under 5 U.S.C. § 4303 or § 7112. Nevertheless, the Union asserts that, as a result of the termination of the grievant's commission, he lost his right to special law enforcement differential pay, resulting in a "reduction of [ v61 p852 ] pay" appealable under 5 U.S.C. § 7112(4). However, employees are entitled to appeal reductions in basic pay, but not the loss of premium pay. See Martinez, 71 MSPR 262, 264-65 (1996), aff'd 126 F.3d 1480 (Fed. Cir. 1997). In this regard, OPM regulations specifically provide that the termination of special law enforcement differential pay "is not an adverse action for the purpose of subpart D of part 752 of this chapter." 5 C.F.R. § 531.304(j); see Federal Law Enforcement Pay Reform Act of 1990, Pub. L. No. 101-509, § 404 (codified as amended at 5 U.S.C. § 5305 app) (special law enforcement pay "considered part of basic pay to the same degree as such a locality-based comparability adjustment"); Campbell, 93 MSPR 70, 72 (2002) (loss of locality pay not an appealable reduction in pay). Thus, even if the Union is correct in arguing that the award resolved the issue of the grievant's special law enforcement pay, the award would not resolve an adverse action.

      With respect to whether the grievance is inextricably intertwined with a § 4303 or § 7512 matter, the grievant here was subject to a § 7512 matter, the proposed removal, which was resolved in the termination grievance by Arbitrator Lang. The parties separately brought the commission grievance to Arbitrator Schwartz and there is no indication that the grievances were, in any way, intertwined. Further, there is no authority indicating that a claim that an employee's law enforcement commission was wrongly suspended would be reviewable by the MSPB in a situation such as this, where the employee's termination had previously been resolved in a separate proceeding. Therefore, the Authority has jurisdiction over these exceptions.

B.      The Agency has not established that the award is based on nonfacts.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.

      The Agency argues that there was no evidence in the record to support the Arbitrator's conclusion that the two employees found by the Arbitrator to have been treated differently from the grievant had, in fact, been treated differently. However, the Agency acknowledges that, before the Arbitrator, it refused to agree with the Union's proposed stipulations concerning the two employees. Therefore, this factual issue was disputed below and, as a result, the Agency's argument does not provide a basis for finding the award deficient.

C.      The Agency has not established that the award is contrary to law.

      The Agency argues that the award is contrary to law because the Arbitrator improperly applied Title VII discrimination principles to the case. The Authority reviews questions of law de novo. See 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 an arbitrator's legal conclusions are consistent with the applicable standard of law. See DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority has "repeatedly held that unless a specified standard of proof is required, arbitrators have the authority to establish whatever standard they consider appropriate, and [the Authority] will not find the award deficient on this basis." United States Dep't of Veterans Affairs, Nat'l Memorial Cemetery of the Pacific, 45 FLRA 1164, 1171 (1992). Here, in determining whether the Agency had cause to revoke the grievant's law enforcement commission, the Arbitrator evaluated the consistency of the Agency's approach to similarly situated employees in determining whether the Agency's action should be upheld. Nothing in the Agency's arguments or the record indicates that the Arbitrator was bound by a specific standard of proof in this situation and there is, therefore, no reason to conclude that the Arbitrator erred in evaluating the consistency of the Agency's action. Contrary to the assertion of the Agency, there is no basis to find that the Arbitrator applied a Title VII analysis or that the Arbitrator was bound to apply the burden-shifting analysis required by McDonnell Douglas. Accordingly, the Agency has not established that the award is contrary to law.

D.      The Agency has not established that the Arbitrator failed to provide a fair hearing.

      The Agency argues that the Arbitrator was "unfair to both parties in failing to clearly state a standard of review." Exceptions at 6. We construe this argument as an allegation that the arbitrator failed to provide a fair hearing. An award will be found deficient on the ground that an arbitrator failed to provide a fair hearing where a party demonstrates that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See AFGE, Local 1668, 50 FLRA 124, 126 (1995).

      We have determined, above, that the Arbitrator was not obliged to apply a particular standard of review. Further, nothing in the Agency's argument establishes [ v61 p853 ] that the Arbitrator refused to consider evidence or conducted the proceeding in a manner that prejudiced a party so as to affect the fairness of the proceeding. According, the Agency has not established that the Arbitrator failed to provide a fair hearing.

E.      The Agency has not established that the award fails to draw its essence from the parties' agreement.

      For an award to be found deficient as failing to draw its essence from the parties' agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      According to the Agency, the Arbitrator ignored the applicable contractual standard that discipline only be imposed to "promote the efficiency of the service" when he resolved the grievance by determining whether the Agency had been "consistent in its approach" to discipline. Exceptions at 7 (quoting Article 13, Award at 5). However, as the Union argues, the question of whether a penalty imposed by an Agency is consistent with penalties imposed against other employees is an aspect of the MSPB's standard analysis of whether discipline has been taken "for the efficiency of the service." Douglas, 5 MSPR 280 at 33, 39. While arbitrators are not required to apply the Douglas standards in cases that do not involve serious discipline under 5 U.S.C. §§ 4303 and 7512, see Soc. Sec. Admin., 61 FLRA 92, 94 n. 6 (2005), the Agency has not established that the Arbitrator's use of a standard consistent with Douglas in interpreting the contact language in this case is irrational, implausible, or in disregard of the agreement. Accordingly, the Agency has not established that the award does not draw its essence from the agreement.

VI.     Decision

      The Agency's exceptions are denied.


Separate Opinion of Member Carol Waller Pope:

      Ordinarily, I would dissent from a decision finding that the Authority has jurisdiction over the Agency's exceptions in this case. In my view, under clear Authority precedent the termination of the grievant's law enforcement commission was "inextricably intertwined" with his removal from employment and the Authority does not have jurisdiction over the exceptions. See FAA, 57 FLRA at 580, 581. In this regard, where an employee has been removed from a position because of the loss of an agency-required certification, the MSPB considers the merits of the underlying loss of certification in reviewing the removal. Jacobs, 62 MSPR 688, 693 (1994) (disqualification from Chemical Personnel Reliability Program); McGillivray, 58 MSPR 398, 402-03 (1993) (revocation of procurement authority); Siegert, 38 MSPR 684, 687-88, 690-91 (1988) (loss of clinical privileges); Cosby, 30 MSPR 16, 18-19 (1986) (loss of medical certification); see also Winings, 2005 MSPB Lexis 6176 (2005) (non-precedential Administrative Judge decision reviewing revocation of Park Ranger's loss of law enforcement commission). Moreover, the fact that the commission grievance and termination grievance were litigated separately does not vest us with jurisdiction over a matter that would not otherwise be within our jurisdiction. See United States Dep't of Veterans Affairs, Med. Ctr., Newington, Conn., 53 FLRA 440 (1997) (Authority declined to find jurisdiction over AWOL grievance where employee separately challenged termination for the same reason before the MSPB).

      However, there is currently a vacancy in the membership of the Authority. Until that vacancy is filled, the issuance of decisions requires agreement between Chairman Cabaniss and me. I believe that it is important that decisions of the Authority not be held up over matter such as this, where I agree with the disposition of the case on the merits, and our accepting jurisdiction over the case simply results in the denial of exceptions on the merits that would otherwise be dismissed for lack of jurisdiction. For that reason, in order to avoid an impasse in the Authority's disposition of this case, I will agree that the Authority has jurisdiction to resolve the matter. See United States Dep't of Labor, Wash., D.C., 61 FLRA 603, 607 (2006) (Member Pope agreeing to avoid an impasse); Dep't of Homeland Sec., Bureau of Immigration & Customs Enforcement, 60 FLRA 131, 138 (2004) (Member Armendariz agreeing to resolve an issue to avoid an impasse); Fort Bragg Ass'n of Educators, NEA, 30 FLRA 508, 552 (1987) (Chairman Calhoun agreeing to avoid an impasse where only two members sitting).



Footnote # 1 for 61 FLRA No. 170 - Authority's Decision

   Member Pope's separate opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 170 - Authority's Decision

   The Union did not have an opportunity to address the Agency's response to the order to show cause at the time it filed its previous opposition. As such, we grant the Union's request to file the reply. See e.g., United States Dep't of Commerce, Patent & Trademark Office, 61 FLRA 476, 476 n.1 (2006) (party must establish basis for filing supplemental submission); United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 52 FLRA 622, 625 (1996) (same).


Footnote # 3 for 61 FLRA No. 170 - Authority's Decision

   The Agency is authorized to designate certain employees as law enforcement officers. 16 U.S.C. § 1a-6(b). Pursuant to this authority, law enforcement commissions are issued to employees who have passed the Agency's background and training requirements. National Park Service, Director's Order # 9: Law Enforcement Program, par. 1 (2000).


Footnote # 4 for 61 FLRA No. 170 - Authority's Decision

   The Arbitrator also found that the Agency discriminated against the grievant with respect to duty restrictions.


Footnote # 5 for 61 FLRA No. 170 - Authority's Decision

   The Douglas factors are the rules developed by the MSPB for evaluating whether a particular disciplinary action should be mitigated. See Douglas, 5 MSPR 280 (1981).


Footnote # 6 for 61 FLRA No. 170 - Authority's Decision

   The Arbitrator also addressed the issue of the arbitrability of the grievance. As no exceptions have been filed concerning this issue, it is not discussed further in this memo.


Footnote # 7 for 61 FLRA No. 170 - Authority's Decision

   Article 13, Section 1 of the parties' agreement provides that "[d]isciplinary action will be taken solely for the purpose of correcting offending employees, maintaining discipline and morale among other employees and a valid reason for promoting the efficiency of the Service." Agency Ex. 1 at 20 (Article 13).


Footnote # 8 for 61 FLRA No. 170 - Authority's Decision

   The Union also argues a variety of "additional reasons," raised below but not relied on by the Arbitrator, that the Agency's action was deficient. Opposition at 8-9. These claims constitute, in effect, exceptions to the award. As the exceptions w