American Federation of Government Employees, Local 1917 (Union) and United States Department of Homeland Security, Citizenship and Immigration Services, New York District (Agency)

[ v62 p354 ]

62 FLRA No. 64

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1917
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
CITIZENSHIP AND IMMIGRATION SERVICES
NEW YORK DISTRICT
(Agency)

0-AR-4032

_____

DECISION

February 15, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Ann Gosline 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 arbitrable. For the reasons that follow, we deny the Union's exception.

II.     Background and Arbitrator's Award

      The grievant was employed by the Agency in a term position that had been extended by the Agency several times. In March 2005, the Agency terminated the grievant's employment, contending that her term appointment had expired and had not been extended. The grievant filed a grievance, which was submitted to arbitration.

      The parties submitted the following issues to arbitration:

1.      Is the grievance arbitrable?
2.      Did the [Agency] violate any rule, regulation, law or contract provision by releasing [the grievant] on March 31, 2005? If so, what is the appropriate remedy?

Award at 1.

      In addressing the first issue, the Arbitrator found that the grievant's claim would be arbitrable if the evidence established that the Agency terminated the grievant prior to the expiration of her term. In resolving whether the grievant was terminated prior to the expiration of her term, the Arbitrator found that the Agency had the authority to extend the grievant's term of employment until September 2006, and that in January 2005 the grievant's Section Chief had sent the grievant an e-mail message indicating that her term appointment had been extended through September 2006. Id. at 16. However, the Arbitrator also found that only the District Director had the authority to extend the grievant's term of employment, and that the District Director had not extended the grievant's term beyond its March 2005 expiration date. Id. Thus, the Arbitrator concluded that the January 2005 e-mail message to the grievant was in error, and the grievant's term of employment ended in March 2005. Id.

      As relevant here, the Arbitrator examined the question of whether the Agency was equitably estopped from enforcing the March 2005 expiration of the grievant's term appointment. The Arbitrator found that the grievant had established the grounds for equitable estoppel because she reasonably relied to her detriment on the e-mail from her Section Chief indicating that her term had been extended. Nevertheless, the Arbitrator concluded that a claim of equitable estoppel may not be made against the Agency, relying on Leiser v. Dep't of Justice, 64 MSPR 543, 548 (1994) (citing H. Landau & Co. v. United States, 886 F.2d 322 (Fed. Cir. 1989) (Landau)). In this regard, the Arbitrator determined that the government cannot be bound by representations of an agent who does not have actual authority and that the Section Chief had no authority to extend the grievant's term appointment. Therefore, the Arbitrator determined that the Agency did not extend the grievant's term appointment beyond March 2005, and consequently, the grievance was not arbitrable.

III.     Positions of the Parties

A.     Union's Exception

      The Union contends that the Arbitrator's award is not in accordance with law. According to the Union, the precedent relied on by the Arbitrator was in error. The Union maintains that Leiser was overturned by Hamlett v. Dep't of Justice, 90 MSPR 674 (2002) (Hamlett). Additionally, the Union claims that the actual [ v62 p355 ] holding in Landau was that the government can be held liable for the actions of an agent who has implied authority. The Union notes that the court in Landau remanded the case to a lower court for factual findings concerning the authority of the employee at issue and requests that the Authority take the same action with respect to the instant award.

      In sum, the Union contends that the Arbitrator incorrectly ruled that the grievant's Section Chief lacked authority to extend the grievant's term appointment and that his promise was not binding. According to the Union, the promises of a Section Chief who has implied authority are binding on the government.

B.     Agency's Opposition

      The Agency contends that the Arbitrator's award was in accordance with law. According to the Agency, the Arbitrator correctly ruled that the employee's grievance is not arbitrable. In this regard, the Agency asserts that the long established rule is that "`estoppel cannot be set up against the [g]overnment on the basis of an unauthorized representation or act of an officer or employee who is without authority in his individual capacity to bind the [g]overnment.'" Opposition at 2 (quoting Shelley v. OPM, 6 MSPR 267, 269 (1981)).

      In response to the Union's claim that Leiser was overturned by Hamlett, the Agency asserts that Hamlett involved the appeal rights of an excepted service employee; it had nothing to do with the termination of a term appointment employee. Moreover, the Agency asserts that the Hamlett decision did not address the equitable estoppel issue.

      The Agency also disputes the Union's characterization of Landau. The Agency argues that Landau is consistent with the body of case law that holds that the government cannot be held liable for misrepresentati