49:0894(85)AR - - FDIC, Div. of Deposit & Asset Services, Oklahoma City, OK and NTEU, Chapter 256 - - 1994 FLRAdec AR - - v49 p894

[ v49 p894 ]
The decision of the Authority follows:

49 FLRA No. 85















May 6, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to the final award of Arbitrator Gerald Cohen 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 sustained a grievance alleging that the Agency's refusal to renew the grievant's temporary appointment was based on his Union activities and, as a result, constituted an unfair labor practice. For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a "Liquidation Graded" employee, was employed by the Agency in a 1-year, temporary, excepted service appointment as an investigator. Award at 2. The grievant was appointed in 1987 and his appointment was renewed each of the next 4 years. However, at his appointment expiration date in February 1992, the appointment was not renewed. The Union filed a grievance alleging that the Agency's refusal to renew the grievant's appointment violated section 7116(a)(1) and (2) of the Statute.(1) When the grievance was not resolved, it was submitted to arbitration.

At the request of the parties, the Arbitrator issued an interim award addressing the Agency's argument that the grievance was not arbitrable. The Arbitrator concluded in the interim award that the grievance was arbitrable. The Arbitrator rejected the Agency's argument that, as the expiration of a temporary appointment may not be appealed as an adverse or performance-based action under 5 U.S.C. § 7501 or 5 U.S.C. § 4301, the grievance was not arbitrable.(2) The Arbitrator pointed out that the grievant did not claim that the expiration of his appointment constituted an adverse or performance-based action and that, instead, the grievant contended that the expiration constituted an unfair labor practice. The Arbitrator concluded that, under the Statute, he was authorized to arbitrate alleged unfair labor practices.

Subsequently, the Arbitrator held a hearing on the merits of the grievance. In the absence of a stipulation by the parties, the Arbitrator framed the following issues to be resolved:

1. Does the Arbitrator have jurisdiction to consider a grievance/arbitration involving the expiration of an employee's temporary time-limited appointment?

2. Is this grievance, which concerns the separation of a temporary employee, excluded from the grievance procedure by Section 1, A, 4, i of the parties' [c]ollective [b]argaining [a]greement?(3)

3. Was the failure of the Agency to extend [the] [g]rievant's temporary/term appointment the product of Union animus? If so, what shall the remedy be?

Award at 1.

In his final award (hereinafter referred to as the award), the Arbitrator noted that the Agency renewed its argument that the grievance was not arbitrable based on, among other things, an award of another arbitrator finding that section 1, A, 4, i of the parties' agreement barred a similar grievance.(4) The Agency also maintained that its decision not to renew the grievant's appointment was based on the decreasing workload of the local office.

The Union argued that the Arbitrator should not reconsider his interim award. The Union also argued that section 7102 of the Statute grants Federal employees the right to engage in Union activities without fear of penalty or reprisal and that employees are protected in the exercise of that right.(5) The Union further argued that the Agency's claim of declining workload as the reason for terminating the grievant's appointment was pretextual.

The Arbitrator reaffirmed his interim decision that the grievance was arbitrable. In so doing, the Arbitrator rejected the Agency's reliance on the award of another arbitrator. The Arbitrator pointed out that, although the same provision of the parties' agreement was in dispute, the other award concerned the termination of a temporary employee for misconduct, and the issue of discrimination on the basis of Union activity was not raised or discussed in that award. The Arbitrator further determined that the phrase "'absent legal requirements to the contrary'" in section 1, A, 4, i of the parties' agreement meant that "an employee cannot be penalized for his or her Union activities." Id. at 28, 29.

The Arbitrator concluded that, for "the failure to reappoint [the] [g]rievant . . . was almost exclusively the product of Union animus." Id. at 30. In particular, the Arbitrator determined that the Agency's claim of declining workload as the reason for the non-renewal was pretextual, and that the Union had established that the non-renewal constituted an unfair labor practice. As a remedy, the Arbitrator ordered the Agency, among other things, to reinstate the grievant and provide him with backpay.

III. Positions of the Parties

A. Agency

The Agency argues that the grievance is not arbitrable.(6) Although the Agency concedes that excepted service, temporary employees have the right "to contest . . . unfair labor practice allegations under 5 U.S.C. § 7116[,]" the Agency argues that the statutory procedures are exclusive. Exceptions at 13.

The Agency argues that, based on the Authority's decision in Federal Deposit Insurance Corporation, Washington, D.C. and Federal Deposit Insurance Corporation, Oklahoma City, Oklahoma, 48 FLRA 313 (1993) (FDIC, Oklahoma City), petition for review filed sub nom. Federal Deposit Insurance Corporation v. FLRA, No. 93-1694 (D.C. Cir. Oct. 18, 1993), the non-renewal of a temporary appointment is not an adverse or performance-based action, and consequently, is not subject to statutory appeal procedures. According to the Agency, where employees are prohibited from challenging adverse and performance-based actions through statutory procedures, such actions also cannot be challenged through negotiated procedures. The Agency relies, in this regard, on Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410 (1991) (Mare Island). The Agency also claims that, like probationary employees, Congress intended agencies "to have exclusive authority" over temporary appointments. Exceptions at 12.

B. Union

The Union argues that the grievance is grievable and arbitrable and that the Agency has not demonstrated that the award is deficient.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law

It is clear that excepted service, temporary employees may not contest adverse and performance-based actions under statutory or negotiated procedures. See Mare Island, 38 FLRA at 1428-30. It also is clear, however, that the non-renewal of a temporary appointment does not constitute an adverse or performance-based action. See FDIC, Oklahoma, 48 FLRA at 326; U.S. Department of the Army, Army Reserve Personnel Center and American Federation of Government Employees, Local 900, 34 FLRA 319 (1990) (Army Reserve). The grievance in this case contests the non-renewal of a temporary appointment based on an alleged unfair labor practice. As such, the Agency's reliance on Mare Island is misplaced.(7)

The Agency also has not demonstrated that the award conflicts with law on any other ground.

In Pension Benefit Guaranty Corporation v. FLRA, 967 F.2d 658 (D.C. Cir. 1992) (PBGC v. FLRA), the court addressed the issue of whether a nonpreference eligible, excepted service employee, who at that time was not permitted to contest adverse or performance-based actions through negotiated or statutory procedures, was nevertheless permitted to contest a separation as an alleged unfair labor practice.(8) The court found that "Congress, in enacting . . . 5 U.S.C. § 7116(a), provided that it is 'an unfair labor practice for an agency . . . to interfere with, restrain, or coerce any employee in the exercise . . . of any right under'" the Statute. Id. at 665-66 (emphasis in original). The court noted that "Congress broadly defined the term 'employee' as 'an individual . . . whose employment . . . has ceased because of any unfair labor practice under section 7116 . . . ." Id. at 666. The court pointed out that Congress did not exclude nonpreference eligible, excepted service employees from the definition of "employee" and that there was no indication of Congressional intent to deny those employees the right to pursue unfair labor practice charges before the Authority.

The "status of temporary employees is identical to that of nonpreference eligible excepted service employees before passage of the Civil Service Due Process Amendments[.]" Mare Island, 38 FLRA at 1429. Accordingly, consistent with the court's decision in PBGC v. FLRA, we conclude that the fact that the grievant could not contest the non-renewal of his appointment as an adverse or performance-based action through statutory or negotiated procedures does not require, or support, a conclusion that the grievant also could not challenge the non-renewal as an alleged unfair labor practices before the Authority.(9)

As the grievant has access to statutory procedures to challenged alleged unfair labor practices, the grievant also has access to negotiated procedures, unless the parties have agreed to the contrary. In this regard, section 7103(a)(9)(C)(ii) of the Statute defines the term "grievance" to include "any claimed violation . . . of any law, rule, or regulation affected conditions of employment[.]" Thus, an employee or the union may allege in a grievance that an agency violated the Statute. For example, U.S. Department of Health and Human Services, Region V and National Treasury Employees Union, Chapter 230, 45 FLRA 737, 743-44 (1992). In addition, section 7123(a)(1) of the Statute, which precludes judicial review of Authority decisions in arbitration cases unless the decision involves an unfair labor practice under the Statute, clearly contemplates the arbitration of grievances involving alleged unfair labor practices. See also Internal Revenue Service v. FLRA, 963 F.2d 429 (D.C. Cir. 1992). As such, unless the parties agreed to exclude alleged unfair labor practices from the scope of their negotiated grievance procedure, the disputed action also is subject to challenge through the negotiated procedure.(10)

For the foregoing reasons, we find that award is not contrary to law and we will deny the Agency's exception.

B. The Award Draws Its Essence From the Collective Bargaining Agreement

Under the Statute, parties may choose to exclude any matter from the scope of negotiated grievance procedures. For example, U.S. Department of the Treasury, Customs Service, Southeast Region and National Treasury Employees Union, 43 FLRA 921 (1992). In this connection we construe the Agency's exception that the Arbitrator erred in finding the grievance arbitrable as a contention that the award fails to draw its essence from the parties' agreement.

To demonstrate that an award fails to draw its essence from the parties' collective bargaining agreement, a party must show 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 the 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 (1993) (AFGE, Local 96) reconsideration denied 47 FLRA 1246 (1993).

Here, Section 1, A, 4, i of the parties' agreement excludes grievances over the separation of temporary employees "absent legal requirements to the contrary." The Arbitrator determined that the quoted phrase meant that temporary employees could not be terminated as the result of engaging in protected activity and that a grievance alleging such a termination was grievable. Nothing in the Arbitrator's interpretation of Section 1, A, 4, i is irrational, implausible, unfounded, or in manifest disregard of the agreement. Instead, the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. Such disagreement provides no basis for finding an award deficient. See AFGE, Local