American Federation of Government Employees, Local 12 (Union) and United States, Department of Labor (Agency)

[ v61 p456 ]

61 FLRA No. 87

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

and

UNITED STATES
DEPARTMENT OF LABOR
(Agency)

0-AR-3978

_____

DECISION

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[.]"