[ v55 p193 ]
55 FLRA No. 34
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
GOLDEN GATE NATIONAL RECREATION AREA
SAN FRANCISCO, CALIFORNIA
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 1276
February 23, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Thomas Angelo 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained the grievance over the grievant's reassignment as the result of her disqualification from her law enforcement position. We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
In 1990, the grievant was appointed a seasonal park ranger (law enforcement) and was appointed a permanent ranger (law enforcement) in 1993. In 1995, she completed a standard form to provide information necessary for a background investigation. In response to a question of whether she had ever "used, possessed, supplied, or manufactured any illegal drugs," the grievant answered that she had not. Award at 4 (quoting standard form). Subsequently, during an interview with an investigator, she recalled a single instance of marijuana use in October 1992, and so informed the investigator. [ v55 p194 ]
When the interview was reviewed by the Agency's chief law enforcement officer, he recommended that the grievant be disqualified from holding a law enforcement position because her credibility and character would be subject to impeachment in court as a result of her illegal drug use and her deception regarding that use. Local and regional park management disagreed. They found that the grievant had not falsified her form and that the marijuana use was too singular to be significant. The Agency's chief ranger adopted the recommendation of his chief law enforcement officer and disqualified the grievant from holding a law enforcement position.
As a result, the grievant was reassigned to a ranger position that was not law enforcement. She filed a grievance that was submitted to arbitration on the following stipulated issues:
Whether the Grievant's reassignment from her position as Park Ranger (Law Enforcement) to Park Ranger (Events) was corrective and progressive in nature, and only taken for just cause and to promote the efficiency of the service? If not what should the remedy be?
Id. at 3. The parties also stipulated that the matter was properly before the Arbitrator for resolution.
The Arbitrator determined that the stipulated issue presented the question of whether the Agency's action in disqualifying the grievant from law enforcement was unwarranted or exceeded its authority. In addition, the Arbitrator determined that he was authorized to review the disqualification decision because it was the type of decision that the Merit Systems Protection Board (MSPB) has held is not precluded from review. Id. at 9 (citing Jacobs v. Department of the Army, 62 MSPR 688 (1994)).
The Arbitrator sustained the grievance. He ruled that the Agency did not have just cause to disqualify the grievant from her law enforcement position. Accordingly, he ordered her reinstated to her law enforcement position with backpay and benefits.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient on two grounds.
First, the Agency contends that the Arbitrator exceeded his authority by basing his award on the propriety of the grievant's disqualification to hold a law enforcement commission. The Agency maintains that the subject of the grievance and the issues stipulated to by the parties pertained to the reassignment of the grievant. The Agency asserts that the grievant's disqualification to hold a law enforcement commission was a separate decision made by the Agency and that the disqualification was not the subject of the grievance and was beyond the issues stipulated to by the parties.
Second, the Agency contends that the award is contrary to section 7121(c)(3) of the Statute. [n1] The Agency contends that its determination to disqualify the grievant was a matter taken under 5 U.S.C. § 7532 and that consequently, the grievance is precluded by law under section 7121(c)(3).
2. Union's Opposition
The Union contends that the Arbitrator did not exceed his authority and that the issue of section 7121(c)(3) is barred from consideration.
The Union argues that the Arbitrator properly considered the grievant's disqualification from law enforcement because it was encompassed within the issue of the propriety of the grievant's reassignment. The Union argues that the issue of whether the grievance is precluded by section 7121(c)(3) is barred by section 2429.5 of the Authority's Regulations because the Agency never presented the issue to the Arbitrator. Alternatively, the Union argues that the grievance is not precluded because section 7532 is inapplicable.
IV. Analysis and Conclusions
A. The Arbitrator Did Not Exceed His Authority
Arbitrators exceed their authority when they resolve an issue not submitted to arbitration. See, e.g., National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Southern California TRACON, 51 FLRA 993, 995 (1996) (NATCA).
The stipulated issues in this case specifically encompassed the propriety of the grievant's reassignment. As the reassignment resulted solely from the grievant's disqualification from law enforcement, we agree with the Arbitrator that the stipulated issues presented the question of whether the Agency's action in disqualifying the grievant from law enforcement, which resulted in her reassignment, was unwarranted. As cited by the Arbitrator, this is the approach of the MSPB in similar circumstances. In Jacobs v. Department of the Army, 62 MSPR at 694, the MSPB held, contrary to the [ v55 p195 ] position of the agency, that it would examine the agency's underlying disqualification of the employee's certification in determining the propriety of the agency's adverse action against the employee.
In addition, the entire focus of the Agency's case to the Arbitrator pertained to the disqualification decision. The Agency's first witness was the superintendent of the Golden Gate National Recreation Area, who testified that he was without discretion in reassigning the grievant once she was disqualified from law enforcement. The Agency's only other witness was the Agency's chief law enforcement officer, who testified to why he recommended that the grievant be disqualified from law enforcement. The Agency's case to the Arbitrator is not consistent with its claim in its exception that the propriety of the disqualification decision was not part of the issues submitted to arbitration.
For these reasons, we conclude that the Arbitrator's inquiry into whether the Agency's decision to disqualify the grievant from law enforcement was warranted was necessary to decide the stipulated issue of the propriety of the grievant's reassignment. Accordingly, the Agency fails to establish that the Arbitrator exceeded his authority in considering the grievant's disqualification from law enforcement. See NATCA, 51 FLRA at 996 (arbitrator's inquiry did not exceed his authority because it was necessary to decide stipulated issue). Consequently, we deny the Agency's exception.
B. The Issue of Whether the Grievance is Precluded by Section 7121 is Barred
Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator. See, e.g., Office and Professional Employees International Union, Local 268 and U.S. Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 54 FLRA 1154, 1157 (1998). There is no indication in the record that the Agency argued to the Arbitrator, as it has in its exception, that the grievance is precluded by section 7121(c)(3) of the Statute. In fact, the parties' stipulation that the matter was properly before the Arbitrator for resolution indicates that the Agency did not contest the arbitrability of the grievance before the Arbitrator. As the issue of section 7121(c)(3) relates to the arbitrability of the grievance, it clearly could, and should, have been presented to the Arbitrator. Accordingly, we deny this exception because we are barred from considering it by section 2429.5. See id. at 1157-58.
We note that the Authority has held that its subject-matter jurisdiction is an issue that may be raised at any stage of the Authority's proceedings. See American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1489 n.7 (1997). However, in this case, the Agency is not questioning the jurisdiction of the Authority to issue a decision resolving its exception. Instead, the Agency is questioning for the first time in its exception the jurisdiction of the Arbitrator to resolve the grievance. We also note that in Veterans Administration Central Office, Washington, D.C., 27 FLRA 835 (1987) (VA Central Office), aff'd sub nom. AFGE v. FLRA, 850 F.2d 782 (D.C. Cir. 1988), the Authority allowed the agency to collaterally attack the arbitrator's award in unfair labor practice compliance proceedings on the ground that the arbitrator lacked jurisdiction because of exclusions by law from the permissible coverage of a grievance procedure negotiated under the Statute. However, VA Central Office did not address section 2429.5 because, unlike the Agency in this case, the agency in VA Central Office raised the claim to the arbitrator.
Finally, we note that in U.S. Department of Justice, Immigration and Naturalization Service, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council, Local 1929, 40 FLRA 43 (1991) (INS), the Authority considered the issue of whether the grievance was precluded by section 7121(d), even though it was not raised before the arbitrator. However, the Authority's determination is without explanation. It provides no rationale as to why the issue was not barred by the plain language of section 2429.5. In the absence of any rationale, we question the viability of INS and see no reason to extend the holding of that case to the circumstances of this case.
The Agency's exceptions are denied.
Footnote # 1 for 55 FLRA No. 34