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48:0480(46)AR - - DOD, NG Bureau, AR Army NG, North Little Rock, Arkansas and NFFE Local 1671 - - 1993 FLRAdec AR - - v48 p480

[ v48 p480 ]
The decision of the Authority follows:

48 FLRA No. 46











LOCAL 1671





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 Barnett M. Goodstein filed by the Agency 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 exceptions.

The Arbitrator directed the Agency to provide the grievant, who was separated from his position as a national guard technician, with appropriate severance pay. For the following reasons, we find that the award is deficient. Accordingly, we will set it aside.

II. Background and Arbitrator's Award

A grievance was filed contesting the Agency's denial of severance pay for a civilian technician whose employment was terminated after he lost his military membership in the National Guard. The latter was occasioned by the technician's failure to comply with military weight standards. The grievant challenged the Agency's denial of severance pay based on its claim that the grievant's "termination was not involuntary[.]" Award at 2. In the Agency's view, the grievant's termination was voluntary "since he had control over his own weight, and chose not to keep it within the Military Weight Standards required for membership in the Guard." Id. The grievant initially sought either reinstatement or severance pay. The request for reinstatement was dropped during the processing of the grievance but the issue of the grievant's entitlement to severance pay remained in dispute.

When the grievance was not resolved, it was submitted to arbitration. The parties stipulated the following issue to be resolved by the Arbitrator:

Is the grievant . . . a National Guard Technician, employed pursuant to 32 U.S.C., Section 709, and who was terminated from his military technician position, due to loss of his military membership for failure to meet military weight standards, entitled to severance pay?

Id. The parties also stipulated that the grievant was denied severance pay based on the provisions of Technician Personnel Regulation (TPR) 990-2, which provides as follows:

Separation due to loss of military membership for failure to comply with the weight control program bars a technician's entitlement to severance pay.

Id. at 3. The Arbitrator found that the sole question before him was whether the termination of the grievant's employment as an excepted service technician in the National Guard was voluntary or involuntary under applicable laws and regulations.

In addressing the issues raised, the Arbitrator examined the legal and regulatory requirements for severance pay, including those found in TPR 990-2 and Federal Personnel Manual (FPM), supplement 990-2, subchapter S7-4. As to the FPM requirements, the Arbitrator found that an employee who has been involuntarily separated for reasons other than misconduct, delinquency, or inefficiency, and who meets length of service requirements is entitled to severance pay. The Arbitrator found that the grievant most likely was entitled to severance pay under the FPM, but was not so entitled under TPR 990-2.

The Arbitrator also stated that both parties agreed that the regulations implementing 5 U.S.C. § 5595, governing severance pay, apply to the grievance. The applicable regulations provide severance pay for employees who are involuntarily separated from Federal service and who meet other prescribed conditions. The Arbitrator found that the grievant apparently met the conditions for eligibility if his separation was involuntary.

The Arbitrator then addressed the National Guard Technicians Act, 32 U.S.C. § 709, and an accompanying Senate Report, the latter of which described the circumstances under which an employee who was involuntarily retired for failing to meet military physical standards could be separated from the service with severance pay. The Arbitrator found that the wording of the Technicians Act and the Senate Report provided a basis on which to find that the Technicians Act "provides for severance pay for those persons who provide service as an employee under the [Technician's] Act[.]" Award at 6. The Arbitrator further found that Technician Information Bulletin #81-1, which provides that separation from technician employment due to loss of military membership for failing to comply with weight requirements is a voluntary action rendering the employee ineligible for severance pay, was not binding on him.

The Arbitrator rejected the Agency's stated position that the grievant's own actions established that his separation was voluntary. The Arbitrator noted that the grievant's "Termination Notice" specifically stated that the nature of his termination was involuntary. Id. The Arbitrator further found that when the Agency advised the grievant that he would lose his health benefits, that loss was also based on his involuntary termination. The Arbitrator found that the Agency was engaged in an attempt to change the basis for the grievant's termination from involuntary to voluntary and that doing so would deny the grievant due process. The Arbitrator concluded that "[t]he Agency cannot have it both ways." Id. at 7.

The Arbitrator also found that the cases cited by the Union in support of its position indicated that, in similar circumstances, courts have held that an employee is "involuntarily terminated when such termination was against the will of the employee, and without his consent." Id. In particular, the Arbitrator cited Sullivan v. United States, 4 Cl. Ct. 70 (1983) (Sullivan), aff'd per curiam, 742 F.2d 628 (Fed. Cir. 1984), in which the court defined "involuntary separation" contained in analogous regulations governing retirement benefits, to mean "any separation against the will and without the consent of the employee[.]" Award at 8. Consequently, the Arbitrator found that

[t]he [agency] Regulations, promulgated by the National Guard (a TPR) does [sic] not, and cannot supersede the statute itself, and was not promulgated to effectuate the purpose of the statute. On the contrary, such Regulation contravenes the language of the statute, and the statute must govern over the language of the TPR.

Id. On this basis, the Arbitrator found that the grievant's "separation . . . was an involuntary separation, and the [g]rievant is entitled to severance pay." Id. Accordingly, the Arbitrator sustained the grievance.

III. Exceptions

The Agency disputes the Arbitrator's finding that the grievant was entitled to severance pay. It claims that the award is deficient, essentially because it is contrary to laws and regulations.

First, the Agency argues that neither 5 U.S.C. § 5595 nor 5 C.F.R. Part 550 defines what is meant by a voluntary or an involuntary separation. Therefore, the Agency contends that the Arbitrator erred in concluding that TPR 990-2 directly conflicts with those legal and regulatory provisions. The Agency argues that an employee's weight is primarily within the control of the employee and, therefore, an employee who loses his or her position due to a failure to meet military weight standards "is not entitled to severance pay since his removal was voluntary." Exceptions at 2. The Agency notes that if an employee is overweight due to medical reasons, the employee's "removal would be involuntary (beyond an employee[']s control) and he or she would be entitled to severance pay." Id.

The Agency also asserts that a civilian employee in the National Guard must maintain military membership, including the obligation to meet prescribed military weight standards. A failure to do so results in separation from Federal employment under 32 U.S.C. § 709(e). The Agency states that employees are given every opportunity to meet the prescribed standards and that "[o]nly, after every chance has been given a member, are members separated for being overweight." Id. at 3. The Agency claims that this is the basis "for TPR 990-2's provision that separation because of weight control is voluntary on the part of the employee." Id.

Next, the Agency asserts that the Arbitrator's reliance on a Senate Report to find that the Technicians Act "appears" to provide for severance pay does not equate to a finding that, in fact, severance pay is required. The Agency explains that the Senate Report addressed situations where an employee suffers a physical disability and does not address the situation of "an individual who is overweight and refuses to reduce to meet military standards." Id. Thus, the Agency argues that the Arbitrator "has used grounds for his award that are a misstatement of fact and specific legislation." Id. The Agency also refutes the importance the Arbitrator attached to the termination notice provided to the grievant. According to the Agency, the wording "Termination - Involuntary" "merely reflects that the individual was separated without cause," and not for disciplinary reasons.

The Agency further argues that the General Accounting Office (GAO) and the Merit Systems Protection Board (MSPB) have both ruled against the availability of severance pay in comparable circumstances. Specifically, the Agency points to GAO Settlement Decision Z-2863882 (October 28, 1987), in which the GAO disallowed a claim for severance pay under TPR 990-2 for an employee who was terminated for failing to meet military weight requirements. The Agency also notes the decision in Yarbrough v. Department of the Air Force, 36 MSPR 142 (1988) (Yarbrough), in which the MSPB held that the loss of military membership for failure to maintain a prescribed military weight was in the employee's control.

Finally, the Agency contends that the Arbitrator erroneously disregarded TPR 990-2, an Agency regulation that precludes the payment of severance pay for civilian technicians who are separated because they lose their military membership "due to obesity." Exceptions at 4. The Agency argues that, therefore, the award is inconsistent with section 7122(a)(1) of the Statute, which requires that awards comply with existing rules and regulations, and with 5 U.S.C. § 5595(c) because the separation of the grievant was purely voluntary and severance pay is not payable when separation is voluntary.

IV. Opposition

The Union argues that the award is consistent with applicable law and Government-wide regulations pertaining to severance pay. The Union maintains that an employee's eligibility for severance pay is governed by 5 U.S.C. § 5595, which provides for such payments in instances where an employee has worked for a continuous period of at least 12 months and is involuntarily separated for reasons other than cause based on misconduct, delinquency, or inefficiency. The Union also argues that in Santora v. United States, 9 Cl. Ct. 182, 186 (1985), the Court of Claims held that the statutory provision governing such payments was "to be construed 'liberally and generously[.]'" Opposition at 3.

The Union agrees with the Agency that the legislation governing severance pay does not define the term "involuntarily separated." Id. However, the Union asserts that the Agency is incorrect in claiming that the pertinent Government-wide regulation does not define this term. The Union notes that 5 C.F.R. § 550.703 defines "involuntary separation" as "a separation initiated by an agency against the employee's will and without his or her consent for reasons other than inefficiency[.]" 5 C.F.R. § 550.703(b). The Union argues that the "grievant's removal was against his will and without his consent." Opposition at 4. The Union also notes that on the termination notice that was issued to the grievant the Agency acknowledged that the grievant's separation was involuntary and that this was the same reason the Agency gave for the discontinuance of his health benefits.

Additionally, the Union argues that the U.S. Claims Court and the Comptroller General have rejected claims similar to those made by the Agency that sought to limit the availability of severance pay. In support, the Union cites Sullivan and Wanda Pleasant, 67 Comp. Gen. 300 (1988). According to the Union, the court in Sullivan held that because the employee at issue "'never manifested any willingness or consent to leave upon the expiration of any of her appointments,' her termination was involuntary within the meaning of 5 U.S.C. § 5595(b) and she was entitled to receive severance pay." Opposition at 5, quoting Sullivan, 4 Cl. Ct. at 76. As to the other cited case, the Union states that the Comptroller General held that an employee was involuntarily separated, noting that the employee's knowledge of her time-limited appointment did not render her removal voluntary and there was no evidence that she consented to be separated. The Union argues that the record in this case likewise establishes that the grievant was involuntarily separated because the "separation was against his will and without his consent," and was "not based on unacceptable performance or conduct[.]" Opposition at 6.

The Union also asserts that the Arbitrator correctly found that the Agency's severance pay regulation contained in TPR 990-2, subchapter S7-3, contravenes applicable law. In this connection, the Union argues that the regulation was issued by the Agency without any statutory authority. According to the Union, the Office of Personnel Management (OPM) is the only agency authorized by law to promulgate regulations governing severance pay and that its regulations are found at 5 C.F.R. § 550.701 et seq. The Union asserts that civilian technicians are covered by those provisions and that it is OPM's regulations, rather than the Agency's regulations, that bind the Arbitrator.

The Union also argues that even assuming the Agency was authorized to promulgate regulations pertaining to severance pay, those regulations would have to be consistent with statutory requirements governing severance pay. The Union reiterates that, by law, employees are entitled to severance pay when they are "separated involuntarily for reasons other than unacceptable performance or conduct." Opposition at 8. The Union argues that under the holding in Sullivan "[t]he central issue of voluntariness 'resolves into a question of fact.'" Id., quoting Sullivan at 75. Here, the Union argues that the Agency's regulation creates an "irrebuttable presumption" that terminations for failure to meet military weight standards are voluntary. Opposition at 8. The Union argues that this presumption has no basis in the law or Government-wide regulations governing severance pay. Rather, the Union argues that, in enacting the law pertaining to severance pay, Congress clearly intended that severance pay determinations "be made on a case-by-case basis with careful attention to the specific facts surrounding an employee's termination." Id. at 9. The Union concedes that the Agency has the authority to establish that military weight requirements must be met as a condition of maintaining civilian technician status. However, the Union asserts that an employee who is terminated from a civilian position for failing to meet the military weight standards nonetheless is eligible for severance pay under the applicable statutory and regulatory framework.

V. Analysis and Conclusions

We will find an award deficient when it is contrary to law, rule, or regulation, or on other grounds similar to those applied by Federal courts in private sector labor relations cases. For the following reasons, we find that the award is deficient. Accordingly, we will set it aside.

In U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990) (Fort Campbell), the Authority stated that "[a] conflict with agency rules and regulations will provide a basis for finding an award deficient under section 7122(a)(1) when such rules or regulations govern the disposition of the matter resolved by the arbitration award." A rule or regulation governs the matter in dispute when it "applies to the matter in dispute and does not conflict with similarly applicable provisions of the collective bargaining agreement." Id. at 190. In this case, the Agency argues that the award is deficient under the Statute because the Arbitrator disregarded TPR 990-2. We agree.

In finding that the grievant was entitled to severance pay, the Arbitrator, among other things, rejected the applicability of TPR 990-2. Specifically, the Arbitrator found that TPR 990-2 "was not promulgated" to effectuate the purpose of 5 U.S.C. § 5595 and, further, that TPR 990-2 "contravene[d] the language of the statute[.](*) Award at 8. We have concluded, after reviewing the regulations implementing 5 U.S.C. § 5595, that nothing in the relevant law or the Union's arguments establishes that the National Guard Bureau lacked the authority to promulgate a regulation defining a failure to comply with military weight standards as constituting a bar to severance pay under 5 U.S.C. § 5595. Rather, we see nothing that prevents the Agency from determining what conduct it will view as within an employee's control, and not involuntary, for purposes of applying section 5595. See generally Buriani v. Department of the Air Force, 777 F.2d 674, 677 (Fed. Cir. 1985) (the term "beyond the employee's control" is comprised of words of art whose meaning can be established by agency regulation). Accord Jeffries v. Department of the Air Force, No. 92-3337, 1993 WL 267340 (Fed. Cir. July 20, 1993). Moreover, while the Union maintains that TPR 990-2 was issued without statutory authority, the Union has presented no evidence supporting that assertion.

Having concluded that the Agency's regulation is applicable in the circumstances of this case, we find that TPR 990-2 constitutes a governing regulation that defines a failure to meet military weight standards as a voluntary separation, for which severance pay is not warranted. The Arbitrator's failure to apply a governing regulation is deficient under the Statute. Fort Campbell. Accordingly, the award must be set aside.

In reaching our result, we reject the Union's assertion that TPR 990-2 creates an "irrebuttable presumption" that "effectively bars every civilian technician from receiving severance pay in every case regardless of the facts or circumstances if the failure to meet military weight requirements is the reason for termination." Opposition at 8. As the Agency notes, there are circumstances under which an employee's failure to meet the weight standards would be deemed involuntary and the employee would be entitled to severance pay. We also find unpersuasive the Union's reliance on Sullivan and Wanda Pleasant. Neither of those cases addressed the applicability of a National Guard Bureau regulation or any other regulation that was claimed to govern the matter in dispute.

VI. Decision

The award is set aside.

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

*/ 5 U.S.C. § 5595 provides, in relevant part, as follows:

(b) Under regulations prescribed by the President or such officer or agency as he may designate, an employee who--

        (1) has been employed currently for a continuous period of at least 12 months; and

        (2) is involuntarily separated from the service, not by removal for cause on charges of misconduct, delinquency, or inefficiency; is entitled to be paid severance pay in regular pay periods by the agency from which separated.