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61 FLRA No. 87
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF LABOR
January 30, 2006
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 exceptions to an award of Arbitrator Earle William Hockenberry 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 determined that a grievance challenging the termination of a temporary employee was not substantively arbitrable, and he dismissed the grievance. For the reasons set forth below, the Union's exceptions are denied.
II. Background and Arbitrator's Award
The grievant, employed on a temporary appointment pursuant to the Agency's Student Temporary Employment Program, was terminated by the Agency for absence without leave and failure to maintain regular attendance. The Union filed a grievance over the removal and, when the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue: "Is the grievance of the . . . termination of [the grievant] arbitrable?" Award at 2.
The Arbitrator stated that the parties' agreement excludes "termination of an employee on a temporary appointment" from the negotiated grievance procedure. Id. at 5 (quoting Article 43, § 3.b.(7)). The Arbitrator found that the record established that the grievant was an employee on a temporary appointment. In this [ v61 p457 ] regard, the Arbitrator found that, as the grievant's appointment was limited to one year, the grievant fell within the exclusion "clearly enunciated" in Article 43, and the grievance was not arbitrable. Id. at 5.
The Arbitrator rejected the Union's contention that the grievance was proper under Article 45, § 1 of the parties' agreement because the grievant has been employed for three years. [n1] The Arbitrator stated that Article 45, § 1, which specifies unit employees who may appeal adverse and disciplinary actions, applies to "individuals . . . who have completed two (2) years of current continuous service in the same or similar positions in an Executive agency under other than temporary appointment limited to two (2) years or less." Id. (emphasis in award). The Arbitrator found that because the grievant was employed under a temporary appointment that was limited to two years or less, Article 45 did not apply.
In addition, the Arbitrator rejected the Union's reliance on Gabriel, an arbitration award finding that an employee with more than two years' employment in the Student Career Experience Program was entitled to file a grievance over her termination. Exceptions, Attach. 5 (Gabriel and United States Dep't of Labor (2003) (Kaplan, arb.) (Gabriel)). The Arbitrator concluded that that award was "instructive, but not controlling or precedential." Id. at 5. Moreover, the Arbitrator determined that the Gabriel award was factually distinguishable because the grievant in Gabriel was employed under the Student Temporary Employment Program, which is a different program from the one under which the grievant was employed.
Based on the foregoing, the Arbitrator dismissed the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator did not correctly apply Article 45, § 1 of the parties' agreement, which provides appeal rights for employees who have completed two years of continuous service. According to the Union, the grievant had served three years of continuous service, which demonstrates that the Agency intended to make the grievant a full-time employee after completion of his educational requirements.
The Union further contends that the Arbitrator improperly distinguished the Gabriel award. The Union asserts that, even if there was a distinction between the grievant's appointment and the appointment of the employee in Gabriel, that distinction is "rendered moot" by the fact that the grievant served three continuous years of service. Exceptions at 5.
Finally, the Union asserts that the award is contrary to Van Wersch v. Dep't of Health and Human Services, 197 F.3d 1144 (Fed. Cir. 1999) (Van Wersch), where the court found that an employee who had completed two years of current continuous service was an "employee" with appeal rights to the Merit Systems Protection Board. According to the Union, Van Wersch "recognize[d] the appropriateness" of two years of continuous service as the minimum required for a temporary employee to have appeal rights. Exceptions at 6.
B. Agency's Opposition
The Agency argues that the award does not fail to draw its essence from Article 45, § 1 of the parties' agreement. According to the Agency, this article does not apply to the grievant because he received a temporary appointment that was limited to one year. The Agency further argues that the Arbitrator correctly determined that the Gabriel award is distinguishable from the instant case. In this regard, the Agency asserts that the grievant in Gabriel participated in a program that, unlike the grievant's, had no time limitation.
Finally, the Agency contends that the award is not contrary to Van Wersch. The Agency states that the court in Van Wersch interpreted 5 U.S.C. § 7511(a)(1)(C)(ii), which grants due process and appeal rights to individuals who have "completed 2 years of current continuous service . . . under other than a temporary appointment limited to 2 years or less[.]" The Agency asserts that the employee in Van Wersch met both elements of the statutory test defining employee status: length of service and nature of the appointment. In contrast, the Agency asserts that the grievant did not meet the requirement that service be under an appointment that is not temporary and is not limited to two years or less.
IV. Analysis and Conclusions
A. The award does not fail to draw its essence from the parties' agreement.
An arbitrator's determination regarding substantive arbitrability under the terms of a collective bargaining agreement is subject to the deferential essence standard. See Nat'l Air Traffic Controllers Ass'n, 56 FLRA 733, [ v61 p458 ] 735 n.3 (2000) (citing AFGE, Local 1857, 53 FLRA 1353 (1998)); EEOC, 53 FLRA 465, 481 n.20 (1997). We construe the Union's claim that the Arbitrator did not correctly apply Article 45, § 1(c) of the parties' agreement as a claim that the award does not draw its essence from the agreement.
For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
Article 45, § 1 of the parties' agreement, which provides employees the right to appeal an adverse action through the negotiated grievance procedure, applies to individuals "who have completed two years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to two years or less." Award at 5. Here, the Arbitrator found, and it is undisputed, that the grievant was employed under a temporary appointment limited to one year or less. As a result, the Arbitrator found that Article 45, § 1 does not apply to the grievant. The Union's contention that Article 45, § 1 applies to the grievant because he served three continuous years ignores the requirement that an employee's service be under an appointment that is not temporary and is not limited to two years or less. The Union has failed to demonstrate that the Arbitrator's interpretation of Article 45, § 1 is irrational, unfounded, or implausible, or that it evidences a manifest disregard for the agreement. Thus, we deny the Union's exception.
B. The award is not contrary to law.
When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Alabama Nat'l Guard, Northport, Alabama, 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Union claims that the Arbitrator improperly distinguished the Gabriel award. However, as explained by the Arbitrator, arbitration awards are not precedential. See, e.g., AFGE, Local 2459, 51 FLRA 1602, 1606 (1996). Consequently, the Union's reliance on the arbitrator's decision in Gabriel provides no basis for finding the award in this case deficient under the Statute. See NFFE, Local 2030, 56 FLRA 667, 672 (2000).
Similarly, the Union's reliance on Van Wersch is misplaced. In this regard, the issue before the court in Van Wersch was whether the grievant was an "employee" with appeal rights under 5 U.S.C. § 7511(a)(1)(C). The court found that the grievant was an "employee" because he completed two years of current continuous service under other than a temporary appointment limited to two years or less. See Van Wersch, 197 F.3d at 1148. Here, the grievant worked under a temporary appointment that, by its terms, was limited to two years or less. Thus, Van Wersch does not apply. [n2]
The Union's exceptions are denied.
Footnote # 1 for 61 FLRA No. 87 - Authority's Decision
The grievant's appointment was made pursuant to 5 C.F.R. § 213.3202(a), which provides for temporary student appointments "not to exceed one year" that "may be extended in one-year increments as long as the individual meets the definition of a student."
Footnote # 2 for 61 FLRA No. 87 - Authority's Decision
We note that, if the Union were correct that the grievant should be considered a permanent employee with appeal rights to the Merit Systems Protection Board (MSPB), then the Authority would lack jurisdiction to review the award. See 5 U.S.C. §§ 7121(f), 7122(a), 7703. Review of arbitration awards concerning adverse actions appealable to the MSPB is in the Court of Appeals for the Federal Circuit, not the Authority.