Naval Plant Representative Office, Dallas, Texas and American Federation of Government Employees, Local Union 3548 (Authority decision, December 21, 1979)

Final FLRA decision. This order resolves review of an arbitration award under the prior executive order program. Judicial review of final Authority orders is governed by 5 U.S.C. § 7123(a), subject to its statutory exceptions.

Plain-English summary

An employee challenged a promotion decision and was later removed after making accusations in his grievance. The arbitrator upheld the promotion selection but found that the removal violated the parties' agreement and ordered the agency to offer to erase the removal from his personnel file. The Authority obtained an Office of Personnel Management interpretation explaining that binding personnel rules did not allow that record to be erased without a determination that the removal was unjustified. It removed the file remedy from the award and sustained the award as modified. The Authority did not adopt the arbitrator's conclusion about the removal itself.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Federal Personnel Manual supplements 293-31 and 296-31.
• Outcome: Personnel file remedy struck; remaining arbitration award sustained.
• Key point: An arbitrator could not require erasure of a removal record contrary to binding personnel instructions.

Full text (FLRA public release)

[ v02 p308 ]

02:0308(38)AR

The decision of the Authority follows:

2 FLRA No. 38

NAVAL PLANT REPRESENTATIVE OFFICE,
DALLAS, TEXAS

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 3548

FLRC No. 78A-157

DECISION ON APPEAL FROM ARBITRATION AWARD

BACKGROUND OF CASE

ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER AROSE AS THE RESULT
OF AN ANNOUNCEMENT POSTED BY THE NAVAL PLANT REPRESENTATIVE OFFICE (THE
ACTIVITY) FOR A VACANCY IN A GRADE GS-12 POSITION. THE GRIEVANT BID ON
THE VACANCY AND HE WAS RATED AS HIGHLY QUALIFIED ALONG WITH THREE OTHER
EMPLOYEES. THE GRIEVANT FILED A GRIEVANCE WHEN HE WAS NOT SELECTED FOR
THE POSITION. AS PART OF HIS GRIEVANCE, THE GRIEVANT CLAIMED THAT THE
SELECTION FOR THE POSITION HAD BEEN IMPROPER BECAUSE OF THE SELECTING
OFFICIAL'S PARTIALITY IN FAVOR OF THE EMPLOYEE WHO WAS PROMOTED. THE
GRIEVANT ALLEGED THAT THE SELECTING OFFICIAL HAD SOLICITED AND ACCEPTED
GRATUITIES AND FAVORS FROM THIS EMPLOYEE TO THE EXTENT THAT THE OFFICIAL
COULD NOT MAKE A PROPER SELECTION. THUS, THE GRIEVANT CLAIMED THAT HIS
PROMOTIONAL OPPORTUNITIES HAD BEEN PREJUDICED BY THIS RELATIONSHIP
BETWEEN THE SELECTING OFFICIAL AND THE SELECTED EMPLOYEE. THE ACTIVITY
FORMALLY INVESTIGATED THE GRIEVANT'S ALLEGATIONS AND EXONERATED FROM ANY
MISCONDUCT BOTH THE SELECTING OFFICIAL AND THE EMPLOYEE SELECTED.
THEREAFTER, THE GRIEVANT WAS REMOVED FROM THE FEDERAL SERVICE FOR
"(K)NOWINGLY MAKING FALSE AND MALICIOUS STATEMENTS WITH INTENT TO HARM
OR DESTROY THE REPUTATION OF OTHERS."

THE GRIEVANCE DISPUTING THE SELECTION WAS ULTIMATELY SUBMITTED TO
ARBITRATION WITH THE UNION REQUESTING THE ARBITRATOR TO FIND THAT THE
ACTIVITY HAD VIOLATED THE PARTIES' NEGOTIATED AGREEMENT AND THE
ACTIVITY'S MERIT PROMOTION PLAN IN ITS SELECTION FOR THE POSITION IN
QUESTION. THE UNION ALSO REQUESTED THE ARBITRATOR TO FIND THAT THE
GRIEVANT WAS UNJUSTLY REMOVED FORM THE FEDERAL SERVICE. IN THIS RESPECT
THE ARBITRATOR RULED THAT THE CIVIL SERVICE COMMISSION WAS THE PROPER
FORUM TO DISPUTE THE REMOVAL AND THAT HE WAS WITHOUT AUTHORITY TO RULE
ON THE JUST CAUSE OF THE GRIEVANT'S REMOVAL. HOWEVER, THE ARBITRATOR
ALSO CONCLUDED THAT THERE WAS "NO DOUBT THAT THE REMOVAL OF THE GRIEVANT
WAS DUE TO THE WORDS HE USED IN HIS WRITTEN GRIEVANCE, AND THERE IS
LANGUAGE IN THE AGREEMENT AS WELL AS THE EXECUTIVE ORDER THAT GOVERNS
THE RELATIONSHIP BETWEEN THE PARTIES WHEN AN EMPLOYEE FILES A
GRIEVANCE." THUS, THE ARBITRATOR STATED THE ISSUES TO BE WHETHER THE
ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT AND REGULATIONS IN ITS
SELECTION AND WHETHER THE ACTIVITY VIOLATED THE AGREEMENT, THE ORDER, OR
REGULATIONS IN ITS DISCIPLINE OF THE GRIEVANT FOR THE WORDS HE USED IN
HIS WRITTEN GRIEVANCE.

ARBITRATOR'S AWARD

WITH RESPECT TO THE FIRST ISSUE, THE ARBITRATOR DETERMINED THAT THE
SELECTING OFFICIAL HAD THE RIGHT TO SELECT ANY NAME FROM THE HIGHLY
QUALIFIED LIST AND CONCLUDED THAT THE ACTIVITY DID NOT VIOLATE THE
AGREEMENT OR APPLICABLE REGULATIONS IN ITS SELECTION IN THIS CASE. WITH
RESPECT TO THE SECOND ISSUE, THE ARBITRATOR WAS OF THE OPINION THAT
FEDERAL SECTOR ARBITRATION IS A CREATURE OF THE FEDERAL GOVERNMENT AND
CONSEQUENTLY COMMUNICATIONS MADE IN THE COURSE OF A GRIEVANCE PROCEDURE
ARE ABSOLUTELY PRIVILEGED. ALTHOUGH THE ARBITRATOR FOUND ON THIS BASIS
THAT THE ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT AND THE EXECUTIVE
ORDER IN DISCIPLINING THE GRIEVANT FOR THE WORDS HE USED IN HIS WRITTEN
GRIEVANCE, THE ARBITRATOR HELD THAT HE HAD NO AUTHORITY TO RULE ON
WHETHER THE GRIEVANT SHOULD BE RETURNED TO HIS JOB SINCE THAT AUTHORITY
IS RESERVED TO THE CIVIL SERVICE COMMISSION.

THEREFORE, AS HIS AWARD THE ARBITRATOR FOUND AND ORDERED AS FOLLOWS:

1. THERE WAS NO SUBSTANTIAL AND MATERIAL VIOLATION OF THE AGREEMENT
   WHEN THE EMPLOYER

SELECTED (THE EMPLOYEE THAT IT DID) FOR THE PROMOTION . . .

2. THE EMPLOYER VIOLATED THE AGREEMENT AND THE EXECUTIVE ORDER WHEN
   THE EMPLOYER REMOVED

THE GRIEVANT FROM SERVICE FOR THE WORDS USED IN HIS GRIEVANCE. THE
EMPLOYER WILL IMMEDIATELY

OFFER TO EXPUNGE THE GRIEVANT'S PERSONNEL FILE OF HIS REMOVAL.

APPEAL OF THE AWARD

BOTH THE AGENCY AND THE UNION FILED PETITIONS FOR REVIEW OF THE
ARBITRATOR'S AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL. THIS CASE
WAS PENDING BEFORE THE COUNCIL ON DECEMBER 31, 1978. IN ACCORDANCE WITH
SECTION 2400.5 OF THE TRANSITION RULES OF THE FEDERAL LABOR RELATIONS
AUTHORITY (44 FED. REG. 44741) AND SECTION 7135(B) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE(92 STAT. 1215), THE RULES OF
PROCEDURE OF THE COUNCIL, 5 C.F.R. PART 2411 (1978), REMAIN OPERATIVE
WITH RESPECT TO THE PRESENT CASE, EXCEPT THAT THE WORD "AUTHORITY" IS
SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH
RULES.

ON MAY 21, 1979, THE AUTHORITY DENIED THE UNION'S PETITION FOR REVIEW
OF PARAGRAPH 1 OF THE ARBITRATOR'S AWARD BECAUSE THE PETITION FAILED TO
MEET THE REQUIREMENTS OF SECTION 2411.32 OF THE AMENDED RULES FOR
ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR REVIEW OF AN ARBITRATOR'S
AWARD. /1/ AT THE SAME TIME, PURSUANT TO SECTION 2411.32 OF THE AMENDED
RULES, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR
AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED THAT PARAGRAPH 2
OF THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL. /2/ NEITHER
PARTY FILED A BRIEF.

OPINION

SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:

(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED

ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER,

OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT

RELATIONS.

AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED
THAT PARAGRAPH 2 OF THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL
MANUAL. SINCE THE CIVIL SERVICE COMMISSION WAS RESPONSIBLE FOR
PRESCRIBING REGULATIONS CONCERNING THE MATTERS INVOLVED IN THIS CASE,
AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT /3/ THIS
APPEAL MUST BE RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN
ENACTED, THE AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT
(THE SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO
THE MATTERS INVOLVED HEREIN) AN INTERPRETATION OF CIVIL SERVICE
COMMISSION REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD IN THIS
CASE. THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS
FOLLOWS:

THE GRIEVANT IN THIS CASE ALLEGED INITIALLY THAT THE AGENCY VIOLATED
THE

PARTIES' NEGOTIATED AGREEMENT BY PROMOTING AN EMPLOYEE OTHER THAN THE
GRIEVANT WHEN FILLING A

POSITION. SPECIFICALLY, THE GRIEVANT ALLEGED THAT THE SELECTION WAS
IMPROPER BECAUSE THE

SELECTING OFFICIAL HAD ACCEPTED GRATUITIES AND FAVORS FROM THE
EMPLOYEE WHO WAS SELECTED WHICH

THEREBY UNFAIRLY INFLUENCED THE SELECTION PROCESS. AFTER THE AGENCY
CONDUCTED AN OFFICIAL

INVESTIGATION WHICH FAILED TO DISCLOSE ANY CREDIBLE EVIDENCE TO
SUPPORT THE CHARGES, THE

AGENCY REMOVED THE GRIEVANT FOR "KNOWINGLY MAKING FALSE AND MALICIOUS
STATEMENTS WITH INTENT

TO HARM AND DESTROY THE REPUTATION OF OTHERS." WHEN THE GRIEVANCE WAS
SUBMITTED TO

ARBITRATION, THE UNION RAISED THE ADDITIONAL ISSUE CONCERNING THE
GRIEVANT'S REMOVAL, AND

SOUGHT TO HAVE THE ARBITRATOR FIND THAT THE GRIEVANT WAS REMOVED
UNJUSTLY FROM THE FEDERAL

SERVICE. THE ARBITRATOR RULED THAT THE AGENCY DID NOT VIOLATE THE
NEGOTIATED AGREEMENT IN

FILLING THE POSITION FOR WHICH THE GRIEVANT APPLIED. THE ARBITRATOR
ACKNOWLEDGED THAT HE

LACKED JURISDICTION TO CONSIDER THE MERITS OF THE GRIEVANT'S REMOVAL,
BUT HE RULED THAT THE

AGENCY VIOLATED THE NEGOTIATED AGREEMENT AND EXECUTIVE ORDER 11491,
AS AMENDED, BY REMOVING

THE GRIEVANT FOR REMARKS MADE DURING THE PROCESSING OF HIS GRIEVANCE.
AS A REMEDY, HE ORDERED

THE AGENCY TO "IMMEDIATELY OFFER TO EXPUNG (SIC) THE GRIEVANT'S
PERSONNEL FILE OF HIS

REMOVAL."

TWO SUPPLEMENTS OF THE FEDERAL PERSONNEL MANUAL (FPM) AND AN FPM
LETTER WHICH WERE IN

EFFECT AT THE TIME OF THE PROMOTION ACTION AND OF THE ARBITRATOR'S
AWARD ARE APPLICABLE TO

THIS CASE. FPM SUPPLEMENT 293-31 PRESCRIBES THE BASIC PERSONNEL
RECORDS AND FILES SYSTEM FOR

FEDERAL DEPARTMENTS AND EMPLOYEES. SUBCHAPTER 55-5.3.A. DESCRIBES
THE OFFICIAL PERSONNEL

FOLDER (OPF) AS THE OFFICIAL REPOSITORY OF THE RECORDS AND REPORTS OF
PERSONNEL ACTIONS

EFFECTED DURING AN EMPLOYEE'S FEDERAL SERVICE, TOGETHER WITH ALL
RELATED DOCUMENTS AND

PAPERS. EXECUTIVE ORDER 10561 PROVIDES THAT THE OPF OF EACH EMPLOYEE
SUBJECT TO CIVIL SERVICE

RULES AND REGULATIONS, BOTH DURING FEDERAL EMPLOYMENT AND AFTER
SEPARATION, SHALL BE PART OF

THE RECORDS OF THE CIVIL SERVICE COMMISSION (OPM).

SUBCHAPTER S5-5.7.A. OF FPM SUPPLEMENT 293-31 FURTHER REQUIRES THAT
ALL PERMANENT RECORDS

DESIGNATED BY OPM AS AFFECTING AN EMPLOYEE'S STATUS AND SERVICE BE
FILED ON THE RIGHT SIDE OF

THE OPF. AGENCIES ARE PRECLUDED FROM DESIGNATING OTHER DOCUMENTS OR
RECORDS FOR FILING ON THE

RIGHT SIDE OF THE FOLDER WITHOUT THE PRIOR APPROVAL OF OPM. ONE SUCH
PERMANENT RECORD

DESIGNATED BY OPM IN SUBCHAPTER S5-6.1.D. OF THIS SUPPLEMENT TO BE
FILED ON THE RIGHT SIDE OF

THE OPF IS THE STANDARD FORM (SF) 50, NOTIFICATION OF PERSONNEL
ACTION (OR ITS EQUIVALENT)

WHEN AN INDIVIDUAL IS SEPARATED FROM A POSITION.

FPM SUPPLEMENT 296-31, BOOK V, TABLE 4 CONTAINS SPECIFIC INSTRUCTIONS
REGARDING ENTRIES TO

BE MADE ON THE SF-50 WHICH DOCUMENT THE NATURE OF A PERSONNEL ACTION.
ACCORDING TO

DOCUMENTATION INSTRUCTIONS IN EFFECT AT THE TIME OF THE EMPLOYEE'S
REMOVAL (SUBTABLE

11-2.M3.), A SEPARATION EFFECTED UNDER THE PROVISIONS OF PART 752B OF
THE COMMISSION'S

REGULATIONS WAS TO BE DOCUMENTED ON THE SF-50 OF THE EMPLOYEE'S OPF
WITH THE PERSONNEL ACTION

CODE "330" AND THE WORD "REMOVAL" IN THE BLOCK WHICH REFERS TO THE
"NATURE OF

ACTION." AGENCIES WERE FURTHER ADVISED TO PROVIDE IN THE "REMARKS"
SECTION OF THE SF-50 A

BRIEF DESCRIPTION OF THE NATURE AND EXTENT OF THE EMPLOYEE'S ACTIONS
WHICH CAUSED THE

SEPARATION.

WHILE OPM MAINTAINS OWNERSHIP AND CONTROL OF ALL EMPLOYEE PERSONNEL
FOLDERS, FPM LETTER

296-33 DOES ALLOW AN AGENCY TO DELETE OR MODIFY AN SF-50 IN AN
EMPLOYEE'S OPF UNDER CERTAIN

SPECIFIED CONDITIONS. THUS, AN AGENCY MAY CANCEL OR CORRECT AN
EMPLOYEE'S SF-50 BASED UPON

EITHER AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL AND
DECISION THAT THE PERSONNEL

ACTION INVOLVING REMOVAL WAS UNJUSTIFIED OR UNWARRANTED. IN THE
INSTANT CASE, THE GRIEVANT

APPEALED HIS REMOVAL TO THE FEDERAL EMPLOYEE APPEALS AUTHORITY
CONCURRENTLY WITH THE

PROCESSING OF HIS GRIEVANCE. WE HAVE BEEN ADVISED, HOWEVER, THAT THE
AGENCY'S REMOVAL OF THE

GRIEVANT WAS AFFIRMED IN A DECISION ISSUED ON FEBRUARY 22, 1979, BY
THE MERIT SYSTEMS

PROTECTION 0OARD.

IN SUMMARY, IN THE ABSENCE OF AN ADMINISTRATIVE OR JUDICIAL
DETERMINATION THAT THE

GRIEVANT'S REMOVAL WAS UNWARRANTED OR

UNJUSTIFIED, IMPLEMENTATION OF THE ARBITRATOR'S AWARD REQUIRING

THE AGENCY TO EXPUNGE THE DOCUMENTATION OF THE GRIEVANT'S REMOVAL
FROM HIS OPF WOULD VIOLATE

BINDING COMMISSION DIRECTIVES.

BASED ON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
MANAGEMENT, WE CONCLUDE THAT PARAGRAPH 2 OF THE ARBITRATOR'S AWARD,
WHICH ORDERS THE AGENCY TO EXPUNGE THE GRIEVANT'S PERSONNEL FILE OF HIS
REMOVAL, IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL AND THEREFORE MAY
NOT BE IMPLEMENTED. /4/

CONCLUSION

FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2411.37(B) OF THE
RULES OF PROCEDURE, WE MODIFY THE ARBITRATOR'S AWARD BY STRIKING THE
LAST SENTENCE OF PARAGRAPH 2 OF THE AWARD. AS SO MODIFIED, THE AWARD IS
SUSTAINED AND THE STAY IS VACATED. /5/

ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ NAVAL PLANT REPRESENTATIVE OFFICE, DALLAS, TEXAS AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 3548 (SCHEDLER,
ARBITRATOR), FLRC NO. 78A=157, 1 FLRA NO. 41 (MAY 21, 1979), REPORT NO.
6.

/2/ THE AGENCY REQUESTED AND THE AUTHORITY GRANTED, PURSUANT TO
SECTION 2411.47(F) OF THE AMENDED RULES OF PROCEDURE, A STAY OF THE
AWARD PENDING DETERMINATION OF THE APPEAL.

/3/ THE CIVIL SERVICE REFORM ACT OF 1978, PUBL L. NO. 95-454, SEC.
902(B), 92 STAT. 1224, PROVIDES:

(B) NO PROVISION OF THIS ACT SHALL AFFECT ANY ADMINISTRATIVE
PROCEEDINGS PENDING AT THE

TIME SUCH PROVISION TAKES EFFECT. ORDERS SHALL BE ISSUED IN SUCH
PROCEEDINGS AND APPEALS

SHALL BE TAKEN THEREFROM AS IF THIS ACT HAD NOT BEEN ENACTED.

/4/ IN ARRIVING AT THIS CONCLUSION THE AUTHORITY DOES NOT PASS UPON,
OR IN ANY MANNER ADOPT, THE ARBITRATOR'S CONCLUSION IN PARAGRAPH 2 OF
HIS AWARD WITH RESPECT TO THE EXECUTIVE ORDER.

/5/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978, THE INSTANT CASE WAS DECIDED SOLELY ON THE BASIS OF E.O. 11491,
AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED. THE DECISION DOES NOT
PREJUDGE IN ANY MANNER EITHER THE MEANING OR APPLICATION OF RELATED
PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH WOULD BE REACHED BY
THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE STATUTE RATHER THAN THE
ORDER.