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55 FLRA No. 52
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
OFFICE OF INDIAN EDUCATION PROGRAMS
RAPID CITY, SOUTH DAKOTA
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 150
March 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charlotte Neigh 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 did not file an opposition to the Agency's exceptions.
The Arbitrator determined that the Agency had not met its burden of demonstrating, by substantial evidence, that it had cause for not renewing the grievant's teaching contract. For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency determined not to renew the grievant's teaching contract and informed the grievant by letter stating, in pertinent part, "a variety of reasons," as follows:
your file indicates you have been involved in many student incidents. . . . In no incidents were there any formal charges filed. However, it is our feeling that with so many incidents occurring, it can't help but to effect (sic) your teaching . . . . it is in the interest of the community, parents, students and yourself that the academic situation would be better served by not renewing your contract . . . .
Award at 11.
After an informal hearing, the Agency then sent the grievant another letter, reaffirming the decision not to renew the contract, as follows:
I was referring to the number of times that you were removed from the classroom while the series of incidents were investigated. (Your representative) indicated that your time being out of the classroom was not your fault but rather Administrative's (sic) fault. In that area, I disagree. You were . . . the common denominator for each of those incidents. Your (sic) responsibility of the administration, whoever they may be, to research the material until they are satisfied that you could return to your teaching duties without any further incident with students, aids or yourself. You are the primary instructor in that classroom, and . . . are responsible for all events in the classroom.
Id. The decision again was reaffirmed, and the Union grieved the nonrenewal.
As relevant here, [n1] the Arbitrator determined that, pursuant to Article 40, Section 4B of the parties' agreement, [n2] the only legitimate basis for not renewing the grievant's contract would be "cause." Applying the "substantial evidence" standard that the parties had stipulated was the standard for reviewing a nonrenewal decision, the Arbitrator concluded that the Agency had not met its burden of demonstrating that it had cause for the nonrenewal of the grievant's contract. The Arbitrator determined that the Agency's first notification letter did not reference any instances where the grievant was found to have committed inappropriate conduct. According to the Arbitrator, the Agency had based its [ v55 p330 ] decision on "an anticipated decrease in the quality of [g]rievant's teaching, although the quality of his performance is admittedly not at issue." Id. at 18.
The Arbitrator then examined the Agency's second letter to the grievant and determined that the Agency shifted its reasoning and blamed the grievant for being away from the classroom while student complaints were investigated. The Arbitrator concluded that "[i]n effect, [m]anagement is blaming the [g]rievant for being the object of student complaints that were never determined to be valid." Id. The Arbitrator noted that the Agency never considered that students might have made false allegations against the grievant based on their dislike for him, and found no apparent reason why the investigations were so lengthy that they resulted in the grievant's absence from the classroom for extensive periods of time.
The Arbitrator concluded that "[g]ood management practices require competent and fair investigations and reliable conclusions in instances as serious as allegations of teacher misconduct" and that "[i]n this case there are no such reliable conclusions." Id. The Arbitrator concluded, therefore, that the Agency had not met its burden of demonstrating, by substantial evidence, that it had cause for the nonrenewal of the grievant's contract. The Arbitrator sustained the grievance and directed the Agency to renew the grievant's teaching contract and make the grievant whole in conformance with the Back Pay Act, 5 U.S.C. § 5596(b).
III. Agency's Exceptions
The Agency argues that it did not violate Article 40, Section 4B of the parties' agreement because its nonrenewal of the grievant's contract was for cause and was based on substantial evidence, as required by 25 C.F.R. § 38.8(i). [n3] According to the Agency, management met the substantial evidence standard when it informed the grievant that his teaching would be affected by the number of incidents involving students, and that the community, students and the grievant would be better served by not renewing the grievant's contract. In addition, the Agency asserts that the grievant admitted to one instance of "untoward conduct involving a student." Exceptions at 3. The Agency further argues that it did not commit harmful procedural error. In addition, the Agency maintains that it was required to decline to renew the grievant's contract as a result of his use of corporal punishment.
IV. Analysis and Conclusions
A. The Award Does Not Fail to Draw Its Essence from Article 40, Section 4B of the Parties' Collective Bargaining Agreement
The Agency argues that the Arbitrator erroneously concluded that the Agency had failed to show that it had "cause" for not renewing the grievant's contract within the meaning of Article 40, Section 4B of the parties' bargaining agreement. We construe this argument as a claim that the award fails to draw its essence from Article 40, Section 4B.
To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement, or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
In concluding that the Agency did not satisfy the "cause" requirement for nonrenewal in Article 40, Section 4B of the parties' agreement, the Arbitrator determined that the Agency based its nonrenewal decision on unproven allegations and the belief that "where there is smoke there is fire." Award at 18. The Agency has not shown that the Arbitrator reached an implausible or irrational conclusion when she determined that the nonrenewal was not for cause. Accordingly, we deny this exception.
B. The Award is Not Contrary to Law in Failing to Find that the Agency Did Not Commit Harmful Error
The Agency asserts that it did not commit harmful procedural error, relying on Merit Systems Protection Board (MSPB) case law applying the harmful-error rule under 5 U.S.C. § 7701(c). [n4] However, the Arbitrator did not find that the Agency had committed harmful procedural error; the Arbitrator concluded that the Agency's nonrenewal of the grievant's contract was not based on [ v55 p331 ] substantial evidence. Moreover, arbitrators are bound by the harmful-error rule only when they are resolving grievances over performance-based actions covered by 5 U.S.C. § 4303 or serious adverse actions covered by 5 U.S.C. § 7512. See, e.g., American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 52 FLRA 739, 746 (1996). There is no assertion that the Agency's failure to renew the grievant's contract constitutes a performance-based action covered by 5 U.S.C. § 4303, and such failure does not constitute an adverse action covered by 5 U.S.C. § 7512. See Schafer v. Department of Interior, 88 F.3d 981, 985 (Fed. Cir. 1996). Accordingly, the harmful-error rule does not apply, and we deny this exception.
C. The Award is Not Contrary to Law in Failing to Conclude that the Grievant's Use of Corporal Punishment Required the Agency to Decline to Renew His Contract
The Agency asserts that it was required to decline to renew the grievant's contract because of the grievant's use of corporal punishment. In support of this argument, the Agency cites 25 U.S.C. § 3201, 62 Bureau of Indian Affairs Manual (BIAM) 11 and 11.27A, and 25 C.F.R. § 38.62. However, none of these provisions address corporal punishment. [n5] In addition, the Arbitrator determined that the Agency had not reliably concluded that the grievant had engaged in any misconduct toward students. Accordingly, even if the Agency had established that the cited law or regulations required the Agency to decline to renew a contract where a teacher commits corporal punishment, there would be no basis for such a finding in this case. As there is no support for the Agency's argument that it was required to decline to renew the grievant's contract due to the grievant's use of corporal punishment, we deny this exception.
The Agency's exceptions are denied.
Footnote # 1 for 55 FLRA No. 52
The Arbitrator rejected the Agency's argument that the grievance was not arbitrable because Article 40 of the parties' agreement illegally usurps the school board's role in hiring teachers. No exceptions were filed to this determination.
Footnote # 2 for 55 FLRA No. 52
Contract Renewal. Employees will be notified in writing by Management of their contract renewal/nonrenewal not less than 60 days prior to the end of the contract. The employee will be notified in writing of the projected level and step of the next year's contract no later than the last day of the current contract. If non-renewal is for budget or program conditions, the procedures for reduction-in-force will be used. Non-renewal for cause or inadequate performance is grievable if the employee is not serving a probationary period.
Award at 5.
Footnote # 3 for 55 FLRA No. 52
Footnote # 4 for 55 FLRA No. 52
Specifically, the Agency cites Kimm v. Department of the Treasury, 64 M.S.P.R. 198 (1994), rev'd, 61 F.3d 888 (Fed. Cir. 1995); Bayne v. Department of Energy, 34 M.S.P.R. 439 (1987); and Mercer v. Department of Health and Human Services , 24 M.S.P.R. 368 (1984), rev'd in part, 772 F.2d 856 (Fed. Cir. 1985).
Footnote # 5 for 55 FLRA No. 52