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The decision of the Authority follows:
29 FLRA NO. 93 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, PACIFIC REGION Activity and OVERSEAS EDUCATION ASSOCIATION Union Case No. 0-AR-593 17 FLRA 1001 (1985)
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Overseas Education Association v. FLRA, No. 85-1420 (D.C. Cir. July 24, 1987) (OEA). This case concerns whether the Agency's exceptions to the award of Arbitrator Ted T. Tsukiyama establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute). On remand, we conclude that the Agency has failed to establish that the award is deficient. Consequently, we vacate the Authority's prior decision setting aside the award and we deny the exceptions.
II. History of the Case
This case arose when there was a reduction in the number of industrial arts teaching positions at a high school of the Activity. As a result, the grievant, an industrial arts teacher and area director of the Union, was first notified that his teaching position would be eliminated. Subsequently, he received formal advance notice of separation by reduction-in-force, and ultimately he was transferred to a teaching position at another high school of the Agency. After the grievant was first notified that his position would be eliminated, the Union filed an unfair labor practice charge alleging violations of section 7116(a)(1) and (2) of the Statute, which charge was ultimately withdrawn voluntarily. Subsequent to the charge being filed and after he received the formal advance notice of separation, the grievant filed a grievance complaining about his "improper dismissal from the Federal Service."
B. Arbitrator's Award
The Arbitrator first rejected the contention that the grievance was barred by the earlier-filed unfair labor practice charge. On the merits, the Arbitrator sustained the grievance. He concluded that the disputed actions were motivated by consideration of the grievant's union activities in violation of the parties' collective bargaining agreement. As his award, he ordered that the grievant be reinstated to his former teaching position with backpay and otherwise be "made whole."
C. Authority's Decision
As one of its exceptions, the Agency contended that the award was contrary to section 7116(d) of the Statute. The Authority concluded that the grievance was barred by the unfair labor practice charge. Consequently, without considering the other exceptions, the Authority decided that the award was deficient as contrary to section 7116(d) and set the award aside. 17 FLRA 1001.
D. Court's Decision
In OEA the court first determined that it had jurisdiction under section 7123(a)(1) to review the Authority's decision. On review, the court held that the Authority erred in finding the award contrary to section 7116(d) and remanded the case for further proceedings. Slip. op. at 23. In view of the court's decision and remand, we will reexamine the Agency's exceptions to the award.
III. First and Second Exceptions
In these exceptions the Agency has contended that the award is deficient because the grievance was barred by section 7116(d) and because the Arbitrator failed to consider section 7116(d) in finding the grievance to be arbitrable.
B. Analysis and Conclusions
We accept as the law of this case the court's decision that the grievance is not barred by section 7116(d). Accordingly, we will vacate the Authority's decision finding the award contrary to section 7116(d) and we will deny these exceptions.
IV. Third Exception
In this exception the Agency maintains that grievances concerning reductions-in-force are excluded from coverage by the negotiated grievance procedure. Consequently, the Agency contends that by finding the grievance to be arbitrable and resolving the grievance on the merits, the award fails to draw its essence from the collective bargaining agreement and is based on a nonfact.
B. Analysis and Conclusions
We find that the mere assertion by the Agency that in its view, grievances over reductions-in-force are excluded from the negotiated grievance procedure fails to establish that the award of the Arbitrator finding the grievance to be arbitrable is deficient as alleged. See, for example, Immigration and Naturalization Service, U.S. Department of Justice and American Federation of Government Employees, Local 40, 18 FLRA 412 (1985) (exceptions contending that the arbitrator's determination that the grievance was appropriate for resolution under the collective bargaining agreement was based on a nonfact and failed to draw its essence from the agreement were denied as challenging the arbitrator's interpretation of the agreement). We further find that the award is not deficient as alleged because as resolved by the Arbitrator, the grievance did not concern a reduction-in-force. As specifically recognized by both the Arbitrator and the U.S. Court of Appeals for the D.C. Circuit, the grievant was never released from his competitive level by separation or reassignment requiring displacement. Accordingly, we conclude that this exception provides no basis for finding the award deficient.
The Authority's original decision, 17 FLRA 1001 (1985), is vacated, and the exceptions to the Arbitrator's award are denied.
Issued, Washington, D.C., October 29, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY