38:1432(111)AR - - DOD Dependents Schools, Germany Region and Overseas Education Association - - 1991 FLRAdec AR - - v38 p1432

[ v38 p1432 ]
The decision of the Authority follows:

38 FLRA No. 111












January 14, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Earle W. Hockenberry, Jr. After holding that a dispute over the grievant's conduct-based termination was arbitrable, the Arbitrator found that the Agency had just cause to discipline the grievant. However, the Arbitrator reduced the grievant's removal to a suspension without pay and ordered that the grievant's personnel records be corrected accordingly.

The Agency filed an exception to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.

For the following reasons, we conclude that the Authority is without jurisdiction to review the Agency's exception. Accordingly, we will dismiss the exception.

II. Background and Arbitrator's Award

The grievant, a GS-11 high school teacher and a nonpreference-eligible, excepted service (NEES) employee, was terminated by the Agency for driving while off-duty in an intoxicated condition and fleeing the scene of two automobile accidents. Subsequently, a grievance was filed concerning the removal. When the grievance remained unresolved, it was submitted to arbitration on the following stipulated issues:

1. Is the . . . removal action of the Grievant . . . arbitrable in substance?

2. If so, was the removal of the Grievant in accordance with the . . . negotiated agreement, applicable law and regulation?

3. If not, what is the appropriate remedy?

Award at 3.

Relying on the Authority's decision in Department of Defense Dependents Schools (DoDDS), Pacific Region and Overseas Education Association (OEA), 22 FLRA 597 (1986)(DoDDS, Pacific Region), the Arbitrator concluded that the dispute was arbitrable. The Arbitrator then found that the Agency had satisfied its "burden [of proof] in demonstrating a linking relationship . . . between the . . . misconduct and the Grievant's duties as an educator." Award at 19. According to the Arbitrator, the misconduct was inconsistent with the "leadership and role model requirements of the Grievant as a DODDS educator." Id. at 20.

The Arbitrator also determined, however, that the removal of the grievant was not consistent with the concept of progressive discipline expressed in the parties' collective bargaining agreement. Finding that the removal was not in accordance with the parties' agreement or applicable law, the Arbitrator concluded that the penalty of termination should be mitigated. Accordingly, the Arbitrator ordered that the termination be "mitigated to a suspension from pay and duties for the remainder of the . . . teaching year[,]" and that the grievant's personnel records "be corrected to show the recission [sic] of the removal action. . . ." Id. at 21.

III. The Agency's Exception

The Agency asserts that the grievant, as a NEES employee, is precluded by law from challenging the termination through the negotiated grievance procedure. The Agency contends that recent court decisions have held "that, under the comprehensive remedial framework established by Congress in chapters 43 and 75 of the Civil Service Reform Act of 1978 . . . , the right to [obtain] review [of] major adverse actions taken under 5 USC 7512 was limited to competitive service and preference eligible employees." Exception at 2. Therefore, the Agency contends that "[t]he arbitrator was without jurisdiction to render an award on the merits of [the] removal action . . . and the award as to that action is deficient under section 7122(a) of the Statute because it is contrary to law." Id. at 1-2.

Furthermore, the Agency argues that the Arbitrator's reliance on DoDDS, Pacific Region was misplaced. According to the Agency, the Authority "was incorrect[]" in finding, in that decision, that overseas teachers were in another personnel system, within the meaning of section 7121(f) of the Statute. Id. at 4.(*) The Agency maintains that the grievant is "covered by [the] provisions of Title 5 for retirement, health insurance, life insurance, travel, allowances, and labor-management relations[,]" and is therefore "not in another personnel system for . . . purposes of adverse personnel actions." Id. In support, the Agency cites Nieuwdorp v. Library of Congress, 872 F.2d 1000, 1002 (Fed. Cir. 1989) (Nieuwdorp), where the court stated that "DODDS employees . . . are covered by the 'employee' definition of chapters 43 and 75 of Title 5 and thus fall within the first, not the second, employee category" of section 7121(f).

IV. The Union's Opposition

Relying on DoDDS, Pacific Region, the Union contends that the Authority lacks jurisdiction to review the Agency's exception. Furthermore, the Union asserts that the Agency's "reliance on Nieuwdorp . . . is misplaced[,] . . . because the court's statement[] about the status of overseas teachers was dictum and not the holding of the court." Opposition at 4.

The Union also maintains that, "unlike other excepted service employees, overseas teachers are not 'at-will' employees." Id. In addition, the Union contends that when the Agency proposes to discharge overseas teachers, they are entitled to notice and an evidentiary hearing, as "satisfie[d]" by a "negotiated grievance and arbitration mechanism . . . ." Id. at 5.

V. Analysis and Conclusion

In DoDDS, Pacific Region, the Authority concluded that the Defense Department Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. &sec