Professional Airways Systems Specialists (Union) and United States Department of Transportation, Federal Aviation Administration, Fort Worth, Texas (Agency)

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57 FLRA No. 74







July 23, 2001


Before the Authority: Dale Cabaniss, Chairman; Carol Waller Pope and Tony Armendariz, Members. [n1] 

Decision by Chairman Cabaniss for the Authority.

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator T. Zane Reeves filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the grievance concerned retirement and was thus excluded from the grievance process by § 7121(c)(2) of the Statute. For the following reasons, we find that the Arbitrator's award is deficient and, absent settlement, remand it to the parties for resubmission to the Arbitrator.

II.     Background and Arbitrator's Award  [n2] 

      Approaching retirement, the grievant requested that the Agency verify his service computation date (SCD) as April 1969. [n3]  The Agency reviewed the grievant's files and determined that between 1969 and 1988 the grievant was an intermittent employee who was incorrectly credited with service as a full-time employee. Transcript at 165; Opposition at 4; Union's Post Hearing Brief at 5-6. The Agency corrected the grievant's SCD and, in the process, eliminated approximately seven and one half years of alleged creditable service. [n4]  Exception at 2; Opposition at 2; Tr. at 165. The matter was grieved, but remained unresolved, and was submitted to arbitration.

      The Union claimed that the Agency erred in determining that the grievant was an intermittent employee during the period in question. The Union also argued that, if not for this error, the grievant's SCD would reflect additional creditable service time, and, as such, requested that the Arbitrator adjust the grievant's SCD. The Agency countered that the entire matter concerns retirement, which is excluded from arbitration under § 7121(c)(2)

      In his award, the Arbitrator framed the issue as follows:

The issue presented to the Arbitrator concerns whether the Grievant's Service [Computation] Date (SCD), which determines among other benefits, one's eligibility for retirement from the agency, was properly determined by the agency. Thus, the issue is two fold in nature:
  • Threshold issue of arbitrability. The agency contends that the issue is not arbitrable because the negotiated grievance procedures and relevant statutes do not allow retirement disputes to be grieved and therefore is not within the arbitrator's jurisdiction. The union asserts that the dispute in the instant matter concerns the Grievant's alleged misclassification status with the agency between 1969 and 1977 and is not directly a retirement issue.
  • Merits of the issue. The agency contends that it properly followed approved FAA procedures to determine the Grievant's SCD, based on the correct assumption that the Grievant was an intermittent employee from 1969 to 1977. The union asserts that the [ v57 p416 ] Grievant's job duties and responsibilities during the aforementioned time period did not meet the criteria for an intermittent employee.

Award at 1-2.

      Upon review of the arguments and the record, the Arbitrator determined that the grievance was not arbitrable. In making this decision, the Arbitrator relied upon Nat'l Air Traffic Controllers Ass'n, MEBA, AFL-CIO, 51 FLRA 204 (1995) (NATCA). The Arbitrator noted that, in NATCA, the Authority found that grievances concerning whether time spent on leave without pay (LWOP) was "creditable service" for the purposes of retirement were excluded from the negotiated grievance procedure under § 7121(c)(2). As such, the Arbitrator determined the NATCA decision was controlling, and that the grievance, for the same reasons as found in NATCA, "concerns a retirement issue" and is not subject to arbitration. Award at 5.

III.     Positions of the Parties

1.     Union's Exception

      The Union argues that the grievant was incorrectly classified as an intermittent, rather than a part-time, employee, a determination which affects the grievant's SCD. Therefore, the Union contends, NATCA is not controlling because the issue there would require an analysis of applicable retirement law to resolve whether the employees' LWOP time was "creditable service." The Union argues that in this case, resolution of the grievance is limited to determining whether the Agency misclassified the grievant as an intermittent employee and thus incorrectly calculated his SCD. According to the Union, the Authority has found disputes concerning an employee's status as an intermittent or part-time employee to be grievable. Citing AFGE, Local 1138, 49 FLRA 1211 (1994) (AFGE). The Union argues, in this regard, that although resolving the grievant's employment status for the period in question could change his SCD, it does not "concern retirement." Exception at 3-5.

2.     Agency's Opposition

      The Agency argues that the grievance was based entirely on the grievant's desire to retire and, thus, that the Arbitrator was correct in determining that the grievance was not arbitrable. According to the Agency, the Union's reliance on AFGE is "misplaced" because AFGE never addressed "creditable service." Moreover, the Agency contends that, to the extent the Union distinguishes the present matter from NATCA, based on a theory that