Department of Defense Dependents Schools, Pacific Region and Overseas Education Association (Authority decision, October 29, 1987)

Final FLRA decision on remand. Following a court remand, the Authority vacates its earlier decision setting aside an arbitration award and denies the agency's exceptions. Judicial review of an Authority order involving an arbitral award is restricted by 5 U.S.C. § 7123(a)(1); the reviewing court held that it had jurisdiction over the earlier order in this case. Filing a petition does not stay an order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A Defense Dependents Schools teacher filed a grievance after his industrial arts position was slated for elimination and he was transferred to another school. An arbitrator found that the actions were motivated by his union activities and ordered reinstatement to his former position with backpay. The Authority initially set aside that award because an unfair labor practice charge had been filed earlier. After the D.C. Circuit rejected that reasoning and remanded, the Authority vacated its earlier decision. It also rejected the agency's remaining argument that the grievance fell outside the negotiated procedure, leaving the arbitrator's award in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); prior unfair labor practice charge under 5 U.S.C. § 7116(d).
• Outcome: The Authority denied the agency's exceptions and left the arbitrator's award in place; its earlier decision was vacated on remand.
• Key point: The prior charge did not bar the grievance, and the agency did not show a defect in the arbitrator's interpretation of the grievance procedure.

Full text (FLRA public release)

[ v29 p1225 ]
29:1225(93)AR

The decision of the Authority follows:

29 FLRA NO. 93

DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, PACIFIC REGION

Activity

and

OVERSEAS EDUCATION ASSOCIATION

Union

Case No. 0-AR-593
17 FLRA 1001 (1985)

DECISION AND ORDER ON REMAND

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Overseas Education Association v. FLRA, No. 85-1420 (D.C. Cir. July 24, 1987) (OEA). This case concerns whether the Agency's exceptions to the award of Arbitrator Ted T. Tsukiyama establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute). On remand, we conclude that the Agency has failed to establish that the award is deficient. Consequently, we vacate the Authority's prior decision setting aside the award and we deny the exceptions.

II. History of the Case

A. Facts

This case arose when there was a reduction in the number of industrial arts teaching positions at a high school of the Activity. As a result, the grievant, an industrial arts teacher and area director of the Union, was first notified that his teaching position would be eliminated. Subsequently, he received formal advance notice of separation by reduction-in-force, and ultimately he was transferred to a teaching position at another high school of the Agency. After the grievant was first notified that his position would be eliminated, the Union filed an unfair labor practice charge alleging violations of section 7116(a)(1) and (2) of the Statute, which charge was ultimately withdrawn voluntarily. Subsequent to the charge being filed and after he received the formal advance notice of separation, the grievant filed a grievance complaining about his "improper dismissal from the Federal Service."

B. Arbitrator's Award

The Arbitrator first rejected the contention that the grievance was barred by the earlier-filed unfair labor practice charge. On the merits, the Arbitrator sustained the grievance. He concluded that the disputed actions were motivated by consideration of the grievant's union activities in violation of the parties' collective bargaining agreement. As his award, he ordered that the grievant be reinstated to his former teaching position with backpay and otherwise be "made whole."

C. Authority's Decision

As one of its exceptions, the Agency contended that the award was contrary to section 7116(d) of the Statute. The Authority concluded that the grievance was barred by the unfair labor practice charge. Consequently, without considering the other exceptions, the Authority decided that the award was deficient as contrary to section 7116(d) and set the award aside. 17 FLRA 1001.

D. Court's Decision

In OEA the court first determined that it had jurisdiction under section 7123(a)(1) to review the Authority's decision. On review, the court held that the Authority erred in finding the award contrary to section 7116(d) and remanded the case for further proceedings. Slip. op. at 23. In view of the court's decision and remand, we will reexamine the Agency's exceptions to the award.

III. First and Second Exceptions

A. Contentions

In these exceptions the Agency has contended that the award is deficient because the grievance was barred by section 7116(d) and because the Arbitrator failed to consider section 7116(d) in finding the grievance to be arbitrable.

B. Analysis and Conclusions

We accept as the law of this case the court's decision that the grievance is not barred by section 7116(d). Accordingly, we will vacate the Authority's decision finding the award contrary to section 7116(d) and we will deny these exceptions.

IV. Third Exception

A. Contentions

In this exception the Agency maintains that grievances concerning reductions-in-force are excluded from coverage by the negotiated grievance procedure. Consequently, the Agency contends that by finding the grievance to be arbitrable and resolving the grievance on the merits, the award fails to draw its essence from the collective bargaining agreement and is based on a nonfact.

B. Analysis and Conclusions

We find that the mere assertion by the Agency that in its view, grievances over reductions-in-force are excluded from the negotiated grievance procedure fails to establish that the award of the Arbitrator finding the grievance to be arbitrable is deficient as alleged. See, for example, Immigration and Naturalization Service, U.S. Department of Justice and American Federation of Government Employees, Local 40, 18 FLRA 412 (1985) (exceptions contending that the arbitrator's determination that the grievance was appropriate for resolution under the collective bargaining agreement was based on a nonfact and failed to draw its essence from the agreement were denied as challenging the arbitrator's interpretation of the agreement). We further find that the award is not deficient as alleged because as resolved by the Arbitrator, the grievance did not concern a reduction-in-force. As specifically recognized by both the Arbitrator and the U.S. Court of Appeals for the D.C. Circuit, the grievant was never released from his competitive level by separation or reassignment requiring displacement. Accordingly, we conclude that this exception provides no basis for finding the award deficient.

V. Decision

The Authority's original decision, 17 FLRA 1001 (1985), is vacated, and the exceptions to the Arbitrator's award are denied.

Issued, Washington, D.C., October 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY