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57 FLRA No. 191
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS
ASSOCIATION OF ADMINISTRATIVE
SOCIAL SECURITY ADMINISTRATION
JUNE 27, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Richard Mittenthal 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 exception.
The Arbitrator found that the grievance was not substantively arbitrable, and he dismissed the grievance. For the reasons that follow, we find that the Union has failed to demonstrate that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Union's exception.
II. Background and Arbitrator's Award
The employee, an administrative law judge (ALJ), requested the Agency's permission to participate in a "private judge" program. [n1] Award at 2. The Agency denied the request, citing, among other things, 5 C.F.R. § 2635.101(b)(10). [n2] A grievance was filed, which was [ v57 p916 ] unresolved and was submitted to arbitration. The Arbitrator framed the issue, in pertinent part, as follows:
Whether the grievance is arbitrable? Or, more specifically, whether the grievance should be dismissed . . . on the ground that it involves a matter not subject to arbitration under the parties' collective bargaining contract and applicable federal regulations? Whether the denial of the ALJ's request to participate in the "Private Judge" program was a violation of existing law, rule, or regulation? If a violation, what is the appropriate remedy?
Id. at 1.
The Arbitrator found that, pursuant to 5 C.F.R. § 2635.106(c) (§ 106(c)), the grievance was not arbitrable. [n3] In this connection, the Arbitrator stated that, "to rule in [the employee's] favor would require me to `enforce' a 2635 right, something that is expressly prohibited by [§ 106(c)]." Id. at 8. The Arbitrator also relied on two Office of Government Ethics (OGE) interpretations of its regulations that, in his view, supported a determination that § 106(c) proscribes arbitration over alleged violations of 5 C.F.R. part 2635 (part 2635). Accordingly, as his award, the Arbitrator dismissed the grievance.
III. Positions of the Parties
A. Union Exception
The Union argues that the award is inconsistent with the Authority's "jurisdiction" to resolve negotiability and arbitration cases. Exception at 5. The Union also argues that the Arbitrator erred in relying on the OGE interpretations because, according to the Union, they are contrary to -- and constitute "an effort to reverse" -- the Authority's decisions in Patent Office Prof'l Ass'n, 53 FLRA 625 (1997), and AFGE, Local 3258, 53 FLRA 1320 (1998). Exception at 6.
B. Agency Opposition
The Agency acknowledges that the Authority has held that certain matters concerning part 2635 are grievable, but argues that when the Authority made those decisions, it "did not have the benefit of" the OGE interpretations. Opposition at 7. According to the Agency, it is within OGE's "scope of powers to clarify a misunderstanding or misinterpretation of its regulations." Id. at 8.
IV. Analysis and Conclusions
The Union asserts that the award finding the grievance nonarbitrable is deficient as contrary to law. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
Section 106(c) provides, in pertinent part, that a "violation of [part 2635] . . . does not create any right or benefit, substantive or procedural, enforceable at law." [n4] The Arbitrator concluded that, "[t]o rule in [the employee's] favor would require me to `enforce' a 2635 right, something which is expressly prohibited by [§ 106(c)]." Award at 8. The Arbitrator's conclusion is consistent with the plain wording of this Government-wide regulation, and the Union has not provided a basis to conclude that the award is contrary to law. [n5] In particular, the Union does not assert that enforcement in the grievance procedure is not enforcement "at law" under § 106(c), or that the grievance asserted violations other than those arising from part 2635. [n6] [ v57 p917 ]
We reject the Union's argument that the award is contrary to the Authority's decisions in Patent Office Prof'l Ass'n, 53 FLRA 625, 648-51 (1997) and AFGE, Local 3258, 53 FLRA 1320, 1325-27 (1998), where, respectively, the Authority considered whether OGE regulations other than § 106(c) limited bargaining rights and access to the grievance procedure. Neither of those decisions suggests, as the Union asserts here, that OGE regulations may never be found to limit subjects reviewable in a grievance procedure.
For the foregoing reasons, we conclude that the Union has not demonstrated that the award is contrary to law.
The Union's exception is denied.
Footnote # 1 for 57 FLRA No. 191
The private judge program, "enacted by the [Florida] state legislature, provides for the parties to any dispute to use a `private judge' rather than the courts to resolve their differences." Award at 2.
Footnote # 2 for 57 FLRA No. 191
5 C.F.R. § 2635.101(b)(10) provides: "Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities."
Footnote # 3 for 57 FLRA No. 191
A violation of [5 C.F.R. part 2635] or of supplemental agency regulations, as such, does not create any right or benefit, substantive or procedural, enforceable at law by any person against the United States, its agencies, its officers or employees, or any other person. Thus, for example, an individual who alleges that an employee has failed to adhere to laws and regulations that provide equal opportunity regardless of race, color, religion, sex, national origin, age, or handicap is required to follow applicable statutory and regulatory procedures, including those of the Equal Employment Opportunity Commission.
Footnote # 4 for 57 FLRA No. 191
We note that, under § 2635.106(b), the OGE Director is empowered to order corrective action pursuant to 5 C.F.R. part 2638 against agencies (part 2638, subpart D), and individual employees (part 2638, subpart E).
Footnote # 5 for 57 FLRA No. 191
As we rely on the plain wording of the regulation, and not the OGE interpretations relied on by the Arbitrator, it is not necessary to address the Union's argument that the interpretations constitute an "impermissible encroachment on the Authority's jurisdiction." Exception at 6.
Footnote # 6 for 57 FLRA No. 191
The award states that the initial grievance alleged a violation of "law, rule or regulation" as well as the grievant's "First Amendment constitutional rights." Award at 4. However, the Arbitrator did not consider whether rights outside those established by part 2635 has been raised in the grievance, and the Union does not raise this issue in its exception.