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49:1398(126)AR - - Panama Canal Commission and Maritime Metal Trades Council - - 1994 FLRAdec AR - - v49 p1398

[ v49 p1398 ]
The decision of the Authority follows:

49 FLRA No. 126












June 21, 1994


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 Diane Dunham Massey 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.(1)

The Arbitrator denied a grievance contesting an employee's termination under the Panama Canal Treaty of 1977 (the Treaty). For the following reasons, we conclude that we lack jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.

II. Background and Arbitrator's Award

After the grievant, a Panamanian national, was hired by the Agency, he became a United States citizen. He was then directed by the Agency to sign a rotation agreement,(2) which is required of all U.S. citizens hired by the Agency after the effective date of the Treaty. The Union filed a grievance when the grievant was notified of the Agency's intention to terminate him under the agreement. The matter was referred to arbitration, and the Arbitrator framed the issue as follows:

Did the Agency violate or misapply any provisions of the contract, or any policy or law when it terminated the [g]rievant . . . . If so, what is the appropriate remedy?

Award at 2.

The Union argued before the Arbitrator that the Agency erred in applying Article X, Paragraph 5 of the Treaty to the grievant. According to the Union, that provision did not apply to the grievant because the grievant was not a U.S. citizen when he was hired by the Agency.(3)

The Arbitrator rejected the Union's argument. In this regard, the Arbitrator concluded that Article X, Paragraph 5 of the Treaty was ambiguous with respect to its applicability to employees who became U.S. citizens after the effective date of the Treaty. The Arbitrator further concluded that, as the Treaty is ambiguous on this point, the Union failed to demonstrate that the Agency violated the Treaty when it terminated the grievant. Consistent with her finding that the Agency's action was not inconsistent with the Treaty, the Arbitrator denied the grievance.

III. Positions of the Parties

The Union asserts that the award is contrary to the Treaty. The Union points out that Article X, Section 5 of the Treaty applies to United States citizens hired after the effective date of the Treaty. The Union asserts that the grievant was hired as a Panamanian citizen and remained such when his employment was terminated.(4) The Union also contends that retention of two other Panamanian citizens, who were hired prior to the Treaty's effective date and who became U.S. citizens after that date, demonstrates that the Agency's termination of the grievant is inconsistent with the Treaty.

The Agency contends that the award is consistent with law and maintains that the Union's exceptions constitute mere disagreement with the Arbitrator's findings and conclusions and do not establish that the award is deficient.

IV. Analysis and Conclusions

Section 7122(a) of the Statute provides, in part, that "[e]ither party to arbitration . . . may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title)." The matters described in section 7121(f) include serious adverse actions covered under 5 U.S.C. § 7512, such as removals, as well as similar actions that arise under "other personnel systems." See, for example, U.S. Department of Defense, Army and Air Force Exchange Service, Dan Daniels Distribution Center, Newport News, Virginia and National Association of Government Employees, 42 FLRA 175 (1991).

Agency employees are not covered by 5 U.S.C. § 7512, but, instead, are covered under another personnel system, within the meaning of section 7121(f) of the Statute. See Panama Canal Commission, Balboa, Republic of Panama, 43 FLRA 1483, 1504 n.4 (1992), reconsideration denied, 45 FLRA 1075 (1992). Accordingly, the issue before us is whether the award concerns a matter which is similar to a matter covered under section 7512.

The issue in the grievance, as framed and addressed by the Arbitrator was whether the Agency misapplied "any provisions of the contract, or any policy or law when it terminated the [g]rievant[.]" Award at 2. In this regard, the Union alleged in its grievance and before the Arbitrator that the Agency terminated the grievant in violation of law and the parties' agreement. As such, if the grievant were an employee subject to 5 U.S.C. § 7512, the Union's claim could properly have been asserted as the basis for an appeal to the Merit Systems Protection Board under 5 U.S.C. § 7701 and, following a Board decision, to the U.S. Court of Appeals for the Federal Circuit under 5 U.S.C. § 7703. See 5 U.S.C. §§ 7512, 7513 (providing that the Merit Systems Protection Board has jurisdiction to review, among other actions, contested removals); Federal Personnel Manual (FPM) Supplement 296-33, S31-2.m (defining "adverse action" as "a personnel action considered unfavorable to an employee, including removal . . . taken by an agency against an employee".).(5)

As the grievance in this case concerns a matter that, if a covered employee were involved, could have been referred to the MSPB and, on appeal, to the United Stated Court of Appeals for the Federal Circuit, the grievance concerns a matter which is similar to a matter covered by 5 U.S.C. § 7512 and, under section 7122(a) of the Statute, the Authority lacks jurisdiction to review the award.

We note, in this connection, that the Authority previously has reviewed awards where, despite a union claim to the contrary, the arbitrator concluded that the grievance involved a matter over which the MSPB lacks jurisdiction. For example, in Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986) (VA), the union claimed that an employee was terminated in violation of the parties' agreement as well as applicable law and regulation. As in this case, the claim could have been submitted to the MSPB. However, the arbitrator dismissed the grievance on the grounds that the termination was not improper but, instead, merely constituted the expiration of a time-limited appointment. Noting that expirations of such appointments do not constitute adverse actions, the Authority concluded that it had jurisdiction to review the award. Id. at 447 n.1. Insofar as the Authority's decision in VA, or any other decision, stands for the proposition that the Authority will review an award that otherwise is appealable to the Federal Circuit when an arbitrator determines that the disputed action does not constitute an adverse action, it will no longer be followed.(6) Put simply, we conclude that the existence of Authority jurisdiction to review an award does not properly rest on the outcome of an award but, rather, depends on whether the claim advanced in arbitration is one that would be reviewed by the MSPB and, on appeal, by the Federal Circuit.

As the grievance arises under another personnel system, within the meaning of section 7121(f) of the Statute, and concerns a matter similar to those covered by 5 U.S.C. § 7512, we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. Accordingly, we will dismiss the exceptions. See U.S. Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 43 FLRA 1271 (1992).

V. Order

The Union's exceptions are dismissed.

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

1. The Union also requested, and the Agency opposed the request, to file supplemental submissions. As the Authority's Rules and Regulations do not provide for the filing of such submissions, and as no basis on which to receive such submissions is present here, we deny the request. For example, U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802 n.1 (1994).

2. The rotation agreement provides:

I understand that upon appointment to a position in the Panama Canal Commission in the Republic of Panama, I will be subject to the rotation policy prescribed by paragraph 5, Article X, of the Panama Canal Treaty of 1977 and that my employment will be limited to a period of not more than three years from the date I arrive at my duty station in Panama. I further understand that this agreement is not a "contract" with the U.S. Government and that my employment with the Panama Canal Commission can be terminated prior to the expiration of the three-year period, through appropriate procedures.

Award at 2.

3. Article X, Paragraph 5 provides:

The United States of America shall establish a policy of the periodic rotation, at a maximum of every five years, of United States citizen employees and other non-Panamanian employees, hired after the entry into force of this Treaty.

It is recognized that certain exceptions to the said policy of rotation may be made for sound administrative reasons, such as in the case of employees holding positions requiring certain non-transferable or non-recruitable skills.

Id. at 4.

4. As the grievant is identified as a "dual U.S./Panamanian citizen," it appears that becoming a U.S. citizen did not affect his Panamanian citizenship. Id. at 11.

5. Although the FPM was abolished effective December 31, 1993, certain provisions were provisionally retained, including FPM Supplement 296-33. See FPM Sunset Document, Summary Table at 6.

6. In this regard, we reject as misplaced the Agency's arguments that the Authority has jurisdiction to review the award because the disputed action is analogous to actions excluded from coverage under 5 U.S.C. § 7512 by 5 C.F.R. § 752.401(b)(9) and (11), which address, respectively, voluntary employee actions and expirations of time-limited appointments. The Union clearly claimed in its grievance and before the Arbitrator that the grievant's termination was both involuntary and unlawful. As such, it is similar to matters covered by section 7512.