45:0817(75)AR - - AFGE Local 2017 and Army Signal Center and Fort Gordon, Fort Gordon, GA - - 1992 FLRAdec AR - - v45 p817
[ v45 p817 ]
The decision of the Authority follows:
45 FLRA No. 75
Before Chairman McKee and Member Talkin.*/
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Bernard H. Cantor filed by the Union 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 Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency incorrectly evaluated the status of the grievant with regard to the weight it gave to his military service, including his status as a disabled veteran, in determining his rights as a civilian employee of the Agency when the Agency conducted a reduction-in-force (RIF). For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant held a position as a civilian employee of the Agency. Previously, he had served in the military and had retired from military service with an honorable discharge and a 60 percent permanent disability as a result of an injury which occurred while the grievant was on active duty during a period of war. The grievant receives retirement pay, calculated to include his disability, based on his military service.
During a RIF, a question was raised regarding the veterans preference to which the grievant was entitled for purposes of his retention status during the RIF. The Agency determined that the grievant was not entitled to preference because of his military service, although earlier in the grievant's career as a civilian employee the Agency had listed him as a veterans preference eligible for purposes of a RIF.
On August 10, 1990, an Agency Civilian Personnel Director issued the grievant a letter which corrected the grievant's service computation date. On September 25, 1990, the Civilian Personnel Director issued the grievant another letter which clarified the grievant's preference status based on his military disability. The letter stated that the grievant's preference status was withdrawn because the grievant's injury was not based on a disability that either: (1) resulted from an injury or disease received in the line of duty as a direct result of armed conflict; or (2) was caused by an instrumentality of war and was incurred in the line of duty during the period of war. The letter noted that under the Dual Compensation Act of 1964, 5 U.S.C. °° 3501-3504, the grievant was not entitled to retain his preference eligibility for RIF purposes. During the RIF, the grievant lost his position as a civilian employee of the Agency.
The employee filed a grievance and claimed that if he had been allowed his accurate veterans preference, he would have been retained as an employee in the RIF. The grievant sought to have his service computation date and tenure group status corrected to reflect his military service and permanent disability.
The grievance was submitted to arbitration. Before the Arbitrator, the grievant contended that he was entitled to veterans preference in the RIF because: (1) he did not have more than 20 years of active military service; (2) he had been certified as retired for disability; and (3) the Agency's correction of his service computation date and preference status was an "illegal re-write of his military record." Award at 13. The Agency argued that the grievant had more than 20 years of military service and was not entitled to special retention preference.
The Arbitrator noted that under the Dual Compensation Act of 1964 an employee who has 20 or more years of military service is not given any special protection for purposes of a RIF, whereas an employee with less than 20 years of service is entitled to a protected status during a RIF.
The Arbitrator found that the grievant was discharged from the military and "[t]his grievant's record definitely includes more than 20 years [of] active service." Id. at 14. The Arbitrator also found that the grievant's "medical record is also in this file and it is clear that he was not disabled by any 'direct result of armed conflict' even though he did become disabled while he was in service and it was war time. The [Dual Compensation Act of 1964] is clear and the grievant does not come within that provision." Id. at 15.
As to the Agency's correction of the grievant's service computation date and preference status, the Arbitrator found that the Agency's personnel office at first improperly had assigned the grievant a preference eligible status. However, the Arbitrator found that "[a]n error at the clerical level does not change either the [Dual Compensation Act of 1964] or the fact[s]. . . . It does not change his military record and his military record does not allow him the retention preference." Id.
As his award, the Arbitrator stated: "It is, therefore, the opinion of the [A]rbitrator and here ORDERED that the grievance of [the grievant] dated February 11, 1991, is DENIED and no relief will be granted." Id. at 16.
III. Positions of the Parties
The Union contends that the Arbitrator was not impartial and free from bias during the proceedings. Rather, the Union asserts that "'the opinion of the Arbitrator' is used to deny the grievant relief on page 16 in the [a]ward . . . ." Exceptions at 4, quoting Award at 16. The Union also asserts that the Arbitrator's decision is not based on law and regulation, specifically 5 U.S.C. °° 2108, 3501, and 3502.
The Agency argues that the Union's exceptions are simply an attempt to relitigate the matter before the Authority. The Agency asserts that the Union has failed to substantiate its claim that the Arbitrator was biased.