The Arbitrator found that, because the grievant had been employed continuously for more than two years in the same or similar positions with the Agency, she met the definition of “employee” under 5 U.S.C. § 7511.^[1] Accordingly, the Arbitrator concluded that the grievant was entitled to the adverse-action procedures set forth in 5 U.S.C. §§ 4303 and 7513, as well as in Article 49, Section 5 of the parties’ agreement, and that the Agency violated the law by failing to provide them. As a remedy, the Arbitrator reinstated the grievant to her position with the Agency and awarded her backpay.

 

 

                Section 7122(a) of the Federal Service       Labor-Management Relations Statute (the Statute) provides, in pertinent part:  “Either party to arbitration under [the Statute] may file with the Authority an exception to any arbitrator’s award pursuant to the arbitration (other than an award relating to a matter described in [§] 7121(f) of [the Statute]).”^[2] The matters described in § 7121(f) are “those matters covered under   5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems.”^[3] As relevant here, the matters covered under 5 U.S.C. §§ 4303 and 7512 include removals.^[4]

 

                In its exceptions, the Agency asserted that the Authority has jurisdiction to review this case because “the grievant’s claim does not concern a ‘removal’ appealable to the [Merit Systems Protection Board (MSPB)] under 5 U.S.C. § 7512.”^[5]  Specifically, the Agency argued that the expiration of a term appointment is not an adverse action that is appealable to the MSPB, and whether the grievant is an “employee” within the meaning of 5 U.S.C. § 7511(a)(1) who has completed a probationary period is irrelevant to determining whether the expiration of a term appointment is appealable.^[6] The Agency, however, cited no Authority precedent in its exceptions to support its claim that the Authority has jurisdiction over a removal based upon the expiration of a term appointment. As such, the Authority’s Office of Case Intake and Publication (CIP) issued an order directing the Agency to show cause why the Authority should not dismiss its exceptions for lack of jurisdiction. The Agency filed a timely response to this order. The order also offered the Union an opportunity to respond to the Agency’s response, but the Union did not file a response.

 

                In its response to CIP’s order, the Agency cited Veterans Administration^[7] to demonstrate that the Authority has jurisdiction to review the Agency’s exceptions. In that case, the grievant was hired for a term appointment not to exceed a certain date.^[8] After the grievant’s employment ended on the expiration date of his term appointment, the union filed a grievance and the parties proceeded to arbitration.^[9] When the agency filed exceptions to the arbitrator’s award, the union argued that the Authority lacked jurisdiction under § 7122(a) of the Statute because the arbitrator’s award related to a matter described in § 7121(f) of the Statute – specifically, a removal under 5 U.S.C. §§ 4303 or 7512.^[10]

 

However, the Authority held that the expiration of the grievant’s appointment did not constitute a removal under 5 U.S.C. §§ 4303 or 7512, and therefore did not dismiss the agency’s exceptions for lack of jurisdiction.^[11] In doing so, the Authority noted that “[r]egulations specifically exclude from the coverage of the actions set forth in [§§] 4303 and 7512 the termination of an appointment on an expiration date if the date was specified as a condition of employment at the time the appointment was made.”^[12] 

 

 

 

 

                The Agency argues that the Arbitrator’s award is contrary to law because it found that the grievant was entitled to due process upon the termination of her employment.^[13] When an exception involves an award’s consistency with law, the Authority reviews any question of law raised by the exception and the award de novo.^[14] In applying the standard of de novoreview, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[15]  

 

                Here, the Arbitrator found that the grievant met the definition of “employee” under 5 U.S.C. § 7511 because she had completed more than two years of continuous service in the same or similar positions with the Agency.^[16] The Arbitrator thus concluded that the grievant had a vested property right in continued employment, and was entitled to the due-process procedures set forth in 5 U.S.C. chapters 43 and 75, as well as in Article 49, Section 5 of the parties’ agreement.^[17]

 

However, § 4303 pertains only to “[a]ctions based on unacceptable performance,”^[18] and § 7512 pertains only to adverse actions.^[19] As the Authority explained in Veterans Administration, the termination of an employee due to the expiration of his or her term employment is not a removal under §§ 4303 or 7512.^[20] Moreover, regulations expressly exclude from coverage under §§ 7512 and 4303, respectively, the “[t]ermination of [an] appointment on the expiration date specified as a basic condition of employment at the time the appointment was made,”^[21] and “[a] termination in accordance with terms specified as conditions of employment at the time the appointment was made.”^[22] 

 

Similarly, Article 49, Section 5 of the parties’ agreement covers only “[a]dverse and [d]isciplinary [a]ctions.”^[23] There is nothing in the record to indicate that the parties’ agreement defines the expiration of a term appointment as a disciplinary action.  Moreover, the Arbitrator did not find, and the Union does not argue, that the parties’ agreement provides for greater due-process rights than what is already provided by statute.

 

Additionally, the MSPB has long held that, “when an expiration date of an appointment is specified as a basic condition of employment,” an employee has no right to appeal the conclusion of her employment on that date.^[24]  That the grievant “met the definition of ‘employee’ at 5 U.S.C. § 7511(a)(1) and had completed [her] probationary period is irrelevant to that determination.”^[25]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

---