U.S. Federal Labor Relations Authority

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48:0462(42)AR - - NTEU and FDIC, Division of Liquidation, Orlando Consolidated Field Office, Orlando, FL - - 1993 FLRAdec AR - - v48 p462

[ v48 p462 ]
The decision of the Authority follows:

48 FLRA No. 42















September 3, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James J. Sherman 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 determined that a grievance challenging the removal of a nonpreference eligible temporary employee for cause was not arbitrable. For the following reasons, we conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency terminated the grievant, a nonpreference eligible temporary employee, prior to expiration of his appointment because of alleged misconduct. The grievant filed a grievance over the removal and, when the grievance was not resolved, it was submitted to arbitration. The parties agreed that the issues to be resolved by the Arbitrator were as follows:

(1) Whether the termination of [the grievant], a temporary employee, is arbitrable?

(2) Was [the grievant] justifiably terminated during his temporary appointment? If not, what is the appropriate remedy?

Award at 1-2.

The Arbitrator determined that the arbitrability issue depended on the interpretation of the last six words in section 1 A.4.i. of the parties' collective bargaining agreement, which provides, in pertinent part, that the grievance procedure does not apply to:

i. separations of temporary employees absent legal requirements to the contrary.

Id. at 6. The Agency contended that the words "absent legal requirements to the contrary" were included in the provision to allow for any changes in law which would permit temporary employees to grieve their terminations. According to the Arbitrator, the Union argued that "these six words open the grievance procedure to all temporary employees whenever their termination is alleged to be in violation of law, and this would include any conceivable theory of constitutional rights." Id. at 7.

The Arbitrator concluded that "there were many compelling reasons to view the Agency interpretation as more probably what the parties intended and no valid reason to support the opposite position." Id. at 7-8. Noting that the Authority had previously held nonnegotiable proposals allowing temporary employees to challenge their terminations through the negotiated grievance procedure, the Arbitrator found that "the Union had no valid reason to assume that it had acquired the right it now claims by virtue of its interpretation" of the negotiated grievance procedure.(1) Id. at 8.

The Arbitrator reviewed Federal court decisions cited by the Union as support for its argument that the grievance was arbitrable. The Arbitrator found that the decisions were "inapplicable . . . because they were not governed by the same type of statutory standards." Id. at 10. He stated that "it seem[ed] quite clear that Congress . . . chose not to grant to temporary employees all of the rights enjoyed by permanent [F]ederal employees." Id. In addition, the Arbitrator rejected the Union's argument that the grievant was, in fact, a permanent employee because his appointment had been automatically renewed for 7 years.

Accordingly, the Arbitrator found that the negotiated grievance procedure did not cover termination of temporary employees and, as his award, concluded that the grievance was not arbitrable.

III. Positions of the Parties

A. Union

The Union concedes that, as a temporary employee, the grievant "does not fall within the definition of those types of employees afforded appeal rights under the Civil Service Reform Act [CSRA]." Exceptions at 6. Specifically, the Union acknowledges that the CSRA "does not contemplate appeal[] to the Merit Systems Protection Board (or to arbitration for that matter) for employees such as the [g]rievant." Id. Nevertheless, the Union asserts that the award is deficient because the Arbitrator misconstrued the provision of the parties' agreement permitting temporary employees to use the grievance procedure to contest their terminations when the challenges are based on "legal requirements." The Union contends that the "legal requirements here should have been acknowledged by this Arbitrator and they are found in the U.S. Constitution." Id. at 7. In the Union's view, the grievant's termination "is arbitrable because his Constitutional right to due process requires a hearing to review the [Agency's] actions[.]" Id. (emphasis omitted).

B. Agency

The Agency asserts that the Union has not demonstrated that the award is deficient. According to the Agency, the Union's exceptions constitute mere disagreement with the Arbitrator's construction of section 1 A.4.i. of the negotiated agreement.

IV. Analysis and Conclusions

We construe the Union's exception that the Arbitrator misinterpreted the parties' agreement as an argument that the award fails to draw its essence from the agreement. An award fails to draw its essence from an agreement when the party making this allegation establishes 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 purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, American Federation of Government Employees, Local 96 and U.S. Department of Veterans Affairs Medical Center, St. Louis, Missouri, 47 FLRA 922, 930 (1993).

We conclude that nothing in the Arbitrator's interpretation of the parties' agreement is irrational, implausible, unfounded, or in manifest disregard of the agreement. Instead, the Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. As such, the exception provides no basis for finding the award deficient. See id.

We interpret the Union's exception that the Arbitrator failed to acknowledge "applicable legal requirements" as an argument that the award is contrary to law. Exceptions at 7. As noted previously, although the Union concedes that the award is consistent with the CSRA, the Union contends that the Arbitrator's finding that the grievance is not arbitrable violates the grievant's right to constitutional due process.

We note that there is no dispute that temporary employees have no statutory right to challenge terminations through a negotiated grievance procedures. See, for example, United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1164-66 (1992) and cases cited therein. We also note that we are "prohibited . . . from disposing of a case upon constitutional rather than statutory grounds[.]" See National Treasury Employees Union v. FLRA, 986 F.2d 537, 540 (D.C. Cir. 1993). See also National Treasury Employees Union v. King, 961 F.2d 240, 243 (D.C. Cir. 1992) (court held that the union's claim "involve[d] constitutional rights not adjudicable in the administrative hearing . . . ."). Accordingly, this exception also provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.(2)

(If blank, the decision does not have footnotes.)

1. The Arbitrator specifically cited Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410 (1991)(Mare Island).

2. We do not address whether the Union's constitutional arguments are adjudicable in another forum.