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55 FLRA No. 93
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2010
(Union)
and
U.S. DEPARTMENT OF AGRICULTURE
FOREST SERVICE
ROGUE RIVER NATIONAL FOREST
(Agency)
0-AR-3097
_____
DECISION
June 30, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Carlton J. Snow filed by the Union under section 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 the grievance was not substantively arbitrable under the parties' collective bargaining agreement because it concerned an "appointment."
For the following reasons, we conclude that the award is deficient as contrary to section 7121(c)(4) of the Statute. Accordingly, we set aside the award and remand this case to the parties with the direction that, absent settlement, the case should be resubmitted to the Arbitrator for a decision on the merits.
II. Background and Arbitrator's Award
The Union filed a grievance contesting the Agency's failure to select the grievant, a 12-year temporary employee of the Agency, for a permanent position. The parties stipulated a threshold issue to the Arbitrator, which he framed as:
[Whether] a dispute about management's failure to appoint a temporary federal employee to a permanent position [is] substantively arbitrable[.] If so, does the arbitrator have jurisdiction to proceed to the merits of the case?
Award at 2.
The Arbitrator concluded that the subject matter of the grievance was excluded from the scope of the parties' grievance procedure pursuant to Article 9 of the agreement. [n1] In reaching this conclusion, the Arbitrator noted that the Restatement (Second) of Contracts provides that contract language should be given its ordinary meaning. The Arbitrator found that: "[g]iving words their ordinary meaning, it is clear that the parties' agreement specifically excludes disputes involving examinations and appointments from the parties' negotiated grievance procedure." Award at 10-11.
The Arbitrator rejected the Union's contention that, under Authority precedent and Suzal v. Director, United States Information Agency, 32 F.3d 574, 580 (D.C. Cir. 1994) (Suzal), the grievance was arbitrable because the word "appointment" refers to "initial appointments." The Arbitrator reasoned that:
[t]he grievant, when applying for a permanent position, was not being reappointed. He was competing with other candidates for an initial appointment to the position. The fact that the positions were [newly] created in 1995 lends support to the conclusion that the grievant enjoyed no contractual or statutory right to be hired for the position.
Award at 12.
The Arbitrator found that the Authority's decision in U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 45 FLRA 1411 (1992) (Overseas Education Association), was distinguishable because, in that case, the Authority relied on a directive --that does not apply in this case -- providing the grievants with certain rights to convert from temporary to permanent status. The Arbitrator concluded that other Authority precedent relied on by the Union also was distinguishable because "[a]ll cases . . . allowed for conversion . . . by virtue of some regulation." Award at 14.
Based on the foregoing, the Arbitrator found that the grievance was not substantively arbitrable because it was barred by Article 9 of the parties' agreement. [ v55 p534 ]
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is contrary to law. According to the Union, because Article 9 of the parties' agreement is a reiteration of 5 U.S.C. § 7121(c)(4), the Arbitrator had an obligation to interpret the contractual provision consistent with the Authority precedent interpreting the statutory provision. Exceptions at 5-6 (citing U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 43 FLRA 147, 153 (1991) (Defense Mapping Agency)). In this respect, the Union argues that the Arbitrator erred by relying on the Restatement, rather than Authority precedent defining "appointment." Id. at 7 (citing National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO and United States Department of Labor, 4 FLRA 376, 381 (1980) (Field Labor Locals)).
The Union also argues that the Arbitrator erred by failing to apply the Authority's holding that employees' "appointments" occur when they are initially hired. According to the Union, the Arbitrator mistakenly concentrated on particular factual issues in the cases the Union cited, and failed to recognize the significance of the Authority's interpretation of section 7121 in those cases. Id. at 11 (citing U.S. Department of Defense Dependents Schools, Kaiserslautern, Germany and Overseas Education Association, 51 FLRA 210, 213 (1995) (Defense Dependents Schools); National Federation of Federal Employees, Local 1636 and U.S. Department of Defense, National Guard Bureau, Albuquerque, New Mexico, 48 FLRA 511, 514 (1993) (National Guard Bureau); Overseas Education Association, 45 FLRA at 1416; United States Information Agency and American Federation of Government Employees, Local 1812, 32 FLRA 739, 742 (1988) (USIA); Field Labor Locals, 4 FLRA at 381).
The Union requests that the Authority set aside the Arbitrator's award and remand the case to the Arbitrator for a resolution of the merits of the grievance.
B. Agency's Opposition
The Agency asserts that the Arbitrator correctly distinguished the precedent cited by the Union on factual grounds. The Agency contends that the Union's argument is premised on the incorrect belief that the Authority "has established a precedent that permits federal agencies to convert employees in the excepted service to the competitive service without formality and contrary to the letter and intent of the Civil Service Rules." Opposition at 3.
IV. Analysis and Conclusions
Where a contract provision reiterates a provision in the Statute, the Authority will "exercise care to ensure that the interpretation is consistent with the Statute, as well as the parties' agreement." Defense Mapping Agency, 43 FLRA at 153. Article 9 of the parties' agreement, which excludes from the scope of the negotiated grievance procedure grievances over "appointments," parallels the statutory exclusion in section 7121(c)(4) of the Statute. In addition, the Agency does not dispute the Union's claim that the agreement simply reiterates section 7121(c)(4). Accordingly, it is necessary to determine whether the grievance in this case is excluded from the grievance procedure pursuant to section 7121(c)(4).
Long-standing Authority precedent interprets the term "appointment" in section 7121(c)(4) as referring "to the action which takes place at the time an individual is initially hired into the Federal service." USIA, 32 FLRA at 748. Accord Suzal, 32 F.3d at 580 ("appointment" under section 7121(c)(4) "refer[s] only to initial appointments[.]"); Defense Dependents Schools, 51 FLRA at 212, ("the term 'appointment' . . relates to the initial entry of an applicant into the Federal service."). Applying this interpretation, the Authority found in Defense Dependents Schools, that there was no basis to conclude that "grievances over conversions from temporary appointments to permanent appointments concern appointments within the meaning of section 7121(c)(4)[.]" Id. at 214 (citing Overseas Education Association, 45 FLRA at 1416).
The Arbitrator distinguished Authority precedent, particularly Overseas Education Association, on the grounds that the Authority relied on a directive, concerning an entitlement to conversion to a permanent position, that is not applicable in this case. The Arbitrator is correct that the Authority in Overseas Education Association quoted the directive in the background section of the decision. However, the Authority made no reference to that directive in reaching the conclusion that "appointment" within the meaning of section 7121(c)(4) does not apply to temporary employees seeking permanent employment. Overseas Education Association, 45 FLRA at 1416-17. There also is no other indication in Overseas Education Association, or other precedent, that the existence of procedures governing conversions -- or, more generally, claimed entitlements to convert -- from one type of appointment to another is a prerequisite to finding that such changes do not consti- [ v55 p535 ] tute appointments. See Suzal, 32 F.3d at 580 (grievance over failure to renew term appointment not barred by section 7121(c)(4) because that section "refer[s] only to initial appointments, not to reappointments"); National Guard Bureau, 48 FLRA at 514 (grievance contesting filling of new position not barred by section 7114(c)(4) because "grievance concern[ed] an action affecting a current Federal employee . . . not . . . the entry of an applicant into the Federal service."). Accordingly, we conclude that the Arbitrator erred in distinguishing Authority precedent on this ground, and that, in the circumstances of this case, the absence of a directive governing conversion of the grievant from temporary to permanent status is not relevant to determining whether the grievance concerns an appointment.
The Arbitrator also relied on the fact that the grievant was seeking a newly created permanent position. However, the Arbitrator did not explain the legal significance of such a factor. More importantly, Authority precedent does not distinguish between appointments to new positions and appointments to established positions. See National Guard Bureau, 48 FLRA at 514 (grievance over the failure to select an employee for a newly established position was not barred as an initial appointment under section 7121(c)(4)). As a result, we conclude that the fact that the position for which the grievant applied is newly-established has no bearing on whether the grievance concerns an appointment.
In sum, we find that the grievance does not concern an appointment under section 7121(c)(4). Accordingly, the award is deficient as contrary to section 7121(c)(4), and we remand the award to the parties.
V. Decision
The award is remanded to the parties for resubmission to the Arbitrator for a decision on the merits.
Footnote # 1 for 55 FLRA No. 93
Article 9 of the agreement provides, in pertinent part, that the "grievance procedure does not apply" to "appointments." Award at 2.