National Association of Independent Labor, Local 6 (Union) and United States Department of Transportation, Maritime Administration, James River Reserve Fleet, Fort Eustis, Virginia (Agency)

[ v63 p232 ]

63 FLRA No. 87

NATIONAL ASSOCIATION
OF INDEPENDENT LABOR
LOCAL 6
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
MARITIME ADMINISTRATION
JAMES RIVER RESERVE FLEET
FORT EUSTIS, VIRGINIA
(Agency)

0-AR-4040
(61 FLRA 816 (2006))

_____

DECISION

April 21, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award on remand of Arbitrator Irwin Kaplan filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. [n1] 

      In his original award, the Arbitrator found that, following a reduction-in-force (RIF), employee C was improperly assigned to a WG-9 Small Craft Operator (Operator) position in violation of 5 C.F.R. § 351.702 and ordered the Agency to offer the position that had been assigned to employee C to employee H. [n2]  As relevant here, in United States Department of Transportation, Maritime Administration, 61 FLRA 816 (2006) (DOT), the Authority remanded the award to have the Arbitrator clarify whether employee C was qualified for the position under 5 C.F.R. § 351.702(a)(4), but reserved judgment on whether employee H was entitled to the position. In a supplemental award, the Arbitrator found that employee H did not have superior assignment rights to the Operator position, or to any other position, and denied the grievance as to employee H. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

A.     Original Award

      Following a RIF, the Union filed seventeen grievances that were consolidated before the Arbitrator. As relevant here, the Arbitrator found that the Agency improperly placed employee C in an Operator position for which he was not qualified, lacked experience, and did not desire in violation of 5 C.F.R. § 351.702(a)(4). See id. at 817-18. The Arbitrator ordered the Agency to offer employee C's Operator position to employee H. See id. at 818.

B.     Authority's Decision in 61 FLRA 816

      As relevant here, the Agency asserted that the Arbitrator's award was contrary to law because it conflicted with the Office of Personnel Management's (OPM's) RIF regulations and Merit Systems Protection Board (MSPB) precedent. See id. Specifically, the Agency argued that the Arbitrator improperly considered whether employee C desired the Operator position, and failed to properly consider employee C's qualifications. See id. The Agency also contended that the Arbitrator's implicit finding that employee H was more qualified for the Operator position than employee C was contrary to law. The Agency asserted that employee H had a lower retention standing than employee C, and, as such, employee H's qualifications for the position were irrelevant. See id. at 818-19.

      The Authority found that the Arbitrator improperly considered employee C's desire to transfer to the Operator position because, under MSPB precedent, his desire was irrelevant. See id. at 821 (citing Grayheart v. Dep't of the Army, 10 MSPB 822, 823 (1982)). The Authority also determined that the Arbitrator had not analyzed whether employee C had the "capacity, adaptability, and special skills" needed for the Operator position as required under OPM's RIF regulations. Id. (quoting 5 C.F.R. § 351.702(a)(4)). Further, the Authority found that the record was insufficient to determine either the appropriate qualifications for the Operator position or employee C's qualifications. See id. at 821-22. The Authority also stated that it would not address the Agency's exception concerning employee H because it [ v63 p233 ] was dependant on the Agency's exception concerning employee C. See id. at 822 n.8.

      The Authority remanded the award to the parties for resubmission to the Arbitrator, absent settlement, "to make appropriate factual findings consistent with 5 C.F.R. § 351.702(a)(4), regarding employee C's qualifications for the [Operator] position." Id. at 824. The Authority further directed that, "[i]f the Arbitrator finds a violation of this provision, then any appropriate remedy must comply with OPM regulations and MSPB precedent." [n3]  Id.

C.     Supplemental Award

      The parties submitted the remanded issue to the Arbitrator. As employee C had retired, the parties agreed that they no longer wished to adjudicate his grievance. See Award at 2. For purposes of resolving employee H's grievance only, the parties stipulated that employee C was not qualified for the Operator position, that employee H was qualified for the position, and that the only outstanding issue to be decided by the Arbitrator was "[w]hether [employee H] should have been placed in the . . . Operator (or other, according to the Union) position rather than being separated in the RIF[.]" Id. at 3.

      The Arbitrator concluded that the Agency was not required to place employee H in the Operator position that it had assigned to employee C. In this regard, the Arbitrator found, and the Union did not dispute, that employees K, R, and S, as well as the employees who displaced employees K, R, and S from their Operator positions, had higher retention standings than employee H. See id. at 8. Applying OPM's RIF regulations, the Arbitrator concluded that the higher retention standings of these six employees, who were all non-grievants, gave them superior assignment rights over employee H to employee C's Operator position. See id. In reaching this conclusion, the Arbitrator rejected the Union's assertion that his consideration of these employees' retention standings constituted an award of relief to non-grievants. The Arbitrator stated that he only considered their retention standings in order to determine whether they had superior assignment rights to employee C's Operator position and emphasized that his award did "not include any affirmative direction to the Agency to provide relief to any of the non-grievants." Id. at 9.

      The Arbitrator also rejected the Union's alternative argument that the Agency could have offered employee H a vacant GS-4 Security Guard (Guard) position if no Operator positions were available. The Arbitrator found that employee H's bump and retreat rights under OPM's RIF regulations only extended back three grade levels from the position from which he was released. See id. The Arbitrator determined that employee H held the position of WG-13 Tug Master at the time of the RIF, and as such, he could not have been offered a GS-4 Guard position because it was more than three grades below his WG-13 position. See id. at 9-10.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the supplemental award is contrary to law because the parties' stipulations establish that employee H was qualified for employee C's Operator position and employee C was not. See Exceptions at 4. According to the Union, these stipulations establish that the Agency violated OPM's RIF regulations by placing employee C in a position for which he was not qualified, and as such, employee H is entitled to employee C's Operator position as an appropriate remedy. See id.

      In the alternative, the Union asserts that the Agency could have offered employee H a vacant Guard position because the position was available and did not require any qualifications. See id. at 5-6. The Union also contends that employee H had a superior service date than employee G, whom the Agency placed in a Guard position, and, consequently, employee H had superior assignment rights to that Guard position. See id. at 6.

      Finally, the Union contends that the Arbitrator exceeded his authority by awarding relief to non-grievants. See id. at 4. According to the Union, the Arbitrator's decision to consider the retention standings of non-grievant employees constituted an impermissible award of relief to them.

B.     Agency's Opposition

      The Agency contends that employee H is not entitled to employee C's Operator position because its decision to place employee C in the position did not affect employee H's substantive rights. See Opposition at 4, 6. In this regard, the Agency argues that several employees had higher retention standings than employee H, and as such, had superior assignment rights to the Operator position. See id. at 4-5. According to the Agency, the retention standings of these employees establish that, [ v63 p234 ] even if employee C had not been improperly assigned to the Operator position, employee H would not have been placed in the position.

      Further, the Agency claims that it could not have placed employee H in a vacant GS-4 Guard position because that position was more than three grades below the WG-13 Tug Master position from which employee H was released. See id. at 6. The Agency argues that OPM's RIF regulations prohibit an employee from exercising bump or retreat rights when the position sought is more than three grades below the position from which the employee was released. See id. (citing 5 C.F.R. § 351.701).

      The Agency also argues that the Arbitrator did not exceed his authority by awarding relief to non-grievants. See id. at 5. In this regard, the Agency contends that the Arbitrator only applied OPM's RIF regulations to determine whether other employees had superior assignment rights to employee C's Operator position and not whether the Agency was required to award the position to any non-grievants. See id.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 United States Dep't of Def., Dep'ts of the Army & 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 Union argues that the parties' stipulations establish that the Agency violated OPM's RIF regulations by placing employee C in the Operator position and that employee H is entitled to the position as a remedy. In evaluating claims that an award is contrary to OPM's RIF regulations, the Authority examines and applies MSPB precedent concerning RIF matters. See, e.g., DOT, 61 FLRA at 820; United States Dep't of the Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base, Tex., 44 FLRA 1195, 1200 (1992)).

      Under OPM's RIF regulations, and with exceptions and limitations not relevant here, an employee released from his or her competitive level is entitled to "bump" another competing employee from his or her position if the bumped employee is, among other criteria, in a lower tenure group or in a lower subgroup within the same tenure group. See 5 C.F.R. § 351.701(b)(1); Warren v. Dep't. of Def., 87 M.S.P.R. 426, 432 (2001) (Warren). Additionally, individuals may displace competing employees in the same tenure group and subgroup by "retreating" into positions occupied by the competing employees if, among other criteria, the replaced employees have a lower retention standing. See 5 C.F.R. § 351.701(c)(1); Warren, 87 M.S.P.R. at 433. An employee's retention standing is determined by examining the employee's tenure of employment, veteran preference, and length of service. See 5 C.F.R. § 351.501(a). In order to exercise bump or retreat rights, the occupied position must be no more than three grades below the position from which the employee seeking to exercise their assignment rights was released. 5 C.F.R. §§ 351.701(b)(2) and (c)(2); Henderson v. Dep't of the Interior, 79 M.S.P.R. 230, 232 (1998), aff'd 202 F.3d 1356 (2000) (Henderson).

      Based on the foregoing precedent, employee H was not entitled to employee C's Operator position regardless of whether the Agency improperly placed employee C in that position. In this regard, the Union has not disputed the Agency's arguments that employees K, R, and S's lengthier service dates gave them higher retention standings for purposes of retreat rights and, therefore, superior assignment rights than employee H. To the contrary, the Union's evidence establishes that, although employees H, K, R, and S were all in the same tenure group and subgroup, employee H had the shortest service date. See Exceptions, Attach., Register (listing the service dates for employees K, R, and S); Employee H's Separation Notice at 1 (listing service date for employee H). Consequently, under OPM's RIF regulations, employees K, R, and S's higher retention standings gave them superior assignment rights to employee C's Operator position. See Pezdek v. Dep't of Def., 80 M.S.P.R. 554, 561, vacated as to other matters and remanded, 215 F.3d 1348 (Table), aff'd in relevant part and modified as to other matters, 84 M.S.P.R. 585 (1999) (Pezdek) (agency properly placed employee, rather than appellant, in a position following a RIF because employee's higher retention standing gave him superior assignment rights).

      The Union also asserts that the Agency could have alternatively offered employee H a vacant Guard position. Under OPM's RIF regulations, an agency is not required to fill vacant positions during a RIF. See 5 C.F.R. § 351.201(b); Treese v. United States Postal Serv., 77 M.S.P.R. 187, 195 (1998) (Treese). However, [ v63 p235 ] if an agency elects to fill a vacancy during a RIF, then it must apply OPM's RIF regulations. See 5 C.F.R. §§ 351.201(b), 351.704(a)(1); Treese, 77 M.S.P.R. at 195. OPM's RIF regulations specify that an offer of assignment to a vacant position must satisfy the requirements of 5 C.F.R. § 351.701. See 5 C.F.R. § 351.704(a)(1). As such, the three-grade limitation for bump and retreat rights set forth in 5 C.F.R. §§ 351.701(b)(2) and (c)(2) applies to offers of assignment to vacant positions made as part of the RIF. See id.; see also Reduction in Force Offers of Vacant Positions, 63 Fed. Reg. 26531 (May 13, 1998) (codified at 5 C.F.R. Part 351) (it is OPM's "longstanding policy" to apply the three-grade limitation for offers of assignments to vacant positions in a RIF).

      Contrary to the Union's claim, the Agency could not have offered employee H a GS-4 Guard position; employee H was released from a WG-13 position and the GS-4 guard position he sought was nine grade levels below his position. See Award at 9. Consequently, the Guard position was well below the three-grade limitation for bump and retreat rights set forth in 5 C.F.R. §§ 351.701(b)(2) and (c)(2). As such, the Arbitrator properly determined that the Agency could not have made employee H an offer of assignment to any Guard position. See Henderson, 79 M.S.P.R. at 232-33 (agency properly refused to allow employee to exercise retreat rights to a GS-5 position because it was more than three grades below the GS-11 position from which she was released).

      Based on the foregoing, we find that the Arbitrator properly determined that employee H's substantive entitlements were not adversely affected by the Agency's decision to place employee C in the Operator position and deny the Union's contrary to law exception. See Pezdek, 80 M.S.P.R. at 565 (appellant's substantive entitlements were not affected by agency's failure to construct the appropriate number of competitive levels where agency established other employees had superior assignment rights to positions appellant could have occupied).

B.     The Arbitrator did not exceed his authority.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority or awards relief to persons who are not encompassed within the grievance. United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). Arbitrators do not exceed their authority when their awards are responsive to a stipulated issue. United States Dep't of the Navy, Long Beach Naval Shipyard, Long Beach, Cal., 48 FLRA 612, 616-17 (1993).

      The Union contends that the Arbitrator exceeded his authority by awarding relief to persons who are not encompassed within the grievance. Although the Arbitrator considered whether non-grievants had superior assignment rights to the disputed position, the award did "not include any affirmative direction to the Agency to provide relief to any of the non-grievants." Award at 9. The Union has not established that any non-grievants were awarded relief. Consequently, we find that the Union has failed to demonstrate that the Arbitrator awarded relief to non-grievants and deny the Union's exception that the Arbitrator exceeded his authority. See United States Dep't of Veterans Affairs, Denver Reg'l Office, Denver, Colo., 60 FLRA 235, 238 (2004) (denying exception that arbitrator exceeded his authority by awarding relief to individuals not encompassed within grievance where award established that arbitrator provided no such relief).

V.     Decision

      The Union's exceptions are denied. [ v63 p236 ]


APPENDIX

5 C.F.R. § 351.201(b) provides:

(b) This part does not require an agency to fill a vacant position. However, when      an agency, at its discretion, chooses to fill a vacancy by an employee who has been reached for release from a competitive level for one of the reasons in paragraph (a)(2) of this section, this part shall be followed.

5 C.F.R. § 351.501(a) provides:

(a) Competing employees shall be classified on a retention register on the basis of their tenure of employment, veteran preference, length of service, and performance in descending order as follows:
(1) By tenure group I, group II, group III; and
(2) Within each group by veteran preference subgroup AD, subgroup A, subgroup B; and
(3) Within each subgroup by years of service as augmented by credit for performance under § 351.504, beginning with the earliest service date.

5 C.F.R. § 351.701 provides, in relevant part:

(b) Lower subgroup -- bumping. A released employee shall be assigned in accordance with paragraph (a) of this section and bump to a position that:
(1) Is held by another employee in a lower tenure group or in a lower subgroup within the same tenure group; and
(2) Is no more than three grades (or appropriate grade intervals or equivalent) below the position from which the employee was released.
(c) Same subgroup-retreating. A released employee shall be assigned in accordance with paragraphs (a) and (d) of this section and retreat to a position that:
(1) Is held by another employee with lower retention standing in the same tenure group and subgroup; and
(2) Is not more than three grades (or appropriate grade intervals or equivalent) below the position from which the employee was released . . . .

5 C.F.R. § 351.704(a)(1) provides:

(a)(1) An agency may satisfy an employee's right to assignment under § 351.701 by assignment to a vacant position under § 351.201(b) . . . . An agency may also offer an employee assignment under § 351.201(b) to a vacant position in lieu of separation by reduction in force under 5 CFR part 351. Any offer of assignment under § 351.201(b) to a vacant position must meet the requirements set forth      under § 351.701.



Footnote # 1 for 63 FLRA No. 87 - Authority's