57 FLRA No. 74

Before the Authority: Dale Cabaniss, Chairman; Carol Waller Pope and Tony Armendariz, Members. [n1] 

Decision by Chairman Cabaniss for the Authority.

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator T. Zane Reeves 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 exceptions.

      The Arbitrator found that the grievance concerned retirement and was thus excluded from the grievance process by § 7121(c)(2) of the Statute. For the following reasons, we find that the Arbitrator's award is deficient and, absent settlement, remand it to the parties for resubmission to the Arbitrator.

II.     Background and Arbitrator's Award  [n2] 

      Approaching retirement, the grievant requested that the Agency verify his service computation date (SCD) as April 1969. [n3]  The Agency reviewed the grievant's files and determined that between 1969 and 1988 the grievant was an intermittent employee who was incorrectly credited with service as a full-time employee. Transcript at 165; Opposition at 4; Union's Post Hearing Brief at 5-6. The Agency corrected the grievant's SCD and, in the process, eliminated approximately seven and one half years of alleged creditable service. [n4]  Exception at 2; Opposition at 2; Tr. at 165. The matter was grieved, but remained unresolved, and was submitted to arbitration.

      The Union claimed that the Agency erred in determining that the grievant was an intermittent employee during the period in question. The Union also argued that, if not for this error, the grievant's SCD would reflect additional creditable service time, and, as such, requested that the Arbitrator adjust the grievant's SCD. The Agency countered that the entire matter concerns retirement, which is excluded from arbitration under § 7121(c)(2)

      In his award, the Arbitrator framed the issue as follows:

The issue presented to the Arbitrator concerns whether the Grievant's Service [Computation] Date (SCD), which determines among other benefits, one's eligibility for retirement from the agency, was properly determined by the agency. Thus, the issue is two fold in nature:

• Threshold issue of arbitrability. The agency contends that the issue is not arbitrable because the negotiated grievance procedures and relevant statutes do not allow retirement disputes to be grieved and therefore is not within the arbitrator's jurisdiction. The union asserts that the dispute in the instant matter concerns the Grievant's alleged misclassification status with the agency between 1969 and 1977 and is not directly a retirement issue.
   
• Merits of the issue. The agency contends that it properly followed approved FAA procedures to determine the Grievant's SCD, based on the correct assumption that the Grievant was an intermittent employee from 1969 to 1977. The union asserts that the [ v57 p416 ] Grievant's job duties and responsibilities during the aforementioned time period did not meet the criteria for an intermittent employee.
   

Award at 1-2.

      Upon review of the arguments and the record, the Arbitrator determined that the grievance was not arbitrable. In making this decision, the Arbitrator relied upon Nat'l Air Traffic Controllers Ass'n, MEBA, AFL-CIO, 51 FLRA 204 (1995) (NATCA). The Arbitrator noted that, in NATCA, the Authority found that grievances concerning whether time spent on leave without pay (LWOP) was "creditable service" for the purposes of retirement were excluded from the negotiated grievance procedure under § 7121(c)(2). As such, the Arbitrator determined the NATCA decision was controlling, and that the grievance, for the same reasons as found in NATCA, "concerns a retirement issue" and is not subject to arbitration. Award at 5.

III.     Positions of the Parties

1.     Union's Exception

      The Union argues that the grievant was incorrectly classified as an intermittent, rather than a part-time, employee, a determination which affects the grievant's SCD. Therefore, the Union contends, NATCA is not controlling because the issue there would require an analysis of applicable retirement law to resolve whether the employees' LWOP time was "creditable service." The Union argues that in this case, resolution of the grievance is limited to determining whether the Agency misclassified the grievant as an intermittent employee and thus incorrectly calculated his SCD. According to the Union, the Authority has found disputes concerning an employee's status as an intermittent or part-time employee to be grievable. Citing AFGE, Local 1138, 49 FLRA 1211 (1994) (AFGE). The Union argues, in this regard, that although resolving the grievant's employment status for the period in question could change his SCD, it does not "concern retirement." Exception at 3-5.

2.     Agency's Opposition

      The Agency argues that the grievance was based entirely on the grievant's desire to retire and, thus, that the Arbitrator was correct in determining that the grievance was not arbitrable. According to the Agency, the Union's reliance on AFGE is "misplaced" because AFGE never addressed "creditable service." Moreover, the Agency contends that, to the extent the Union distinguishes the present matter from NATCA, based on a theory that in NATCA the Arbitrator would have needed to interpret retirement law, such argument is unpersuasive. Rather, the Agency claims that the result in NATCA was based squarely on the fact that the subject matter concerned retirement.

IV.     Analysis and Conclusions

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFEE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      Resolution of this case turns on "whether the subject matter of the grievance `concern[s] . . . retirement' under § 7121(c)(2)." NATCA, 51 FLRA at 207. In NATCA, a union sought "creditable service" for employees who were in a LWOP status. In that case, the union argued that, under the parties' contract, an employee's service while on LWOP was creditable and should count towards retirement. The arbitrator determined that the matter concerned retirement under § 7121(c)(2). The Authority agreed, stating that "the grievance concerns whether time spent by two unit employees on LWOP while they were serving as Union officers constitutes creditable service for determining when an employee will be eligible for retirement." Id. at 208.

      Here, the dispute concerning the grievant's SCD is based on the Agency's alleged factual error in determining that the grievant was an intermittent, rather than a part-time, employee. This case is not a dispute over whether the grievant has sufficient creditable service for retirement. Therefore, if the Union is correct in claiming that the Agency erred in designating the grievant as an intermittent employee, the Agency's error could affect computation of the grievant's SCD, wholly apart from any determination relating to his retirement. [n5]  Accordingly, while the purpose of the grievant's request [ v57 p417 ] for clarification of his SCD may be motivated by his anticipated retirement, the underlying dispute is limited to resolving whether the grievant should have been designated as a part-time, rather than an intermittent, employee. Therefore, we find that the grievance does not constitute a matter that concerns retirement under § 7121(c)(2).

V.     Decision

      The award is remanded to the parties for resubmission to the Arbitrator, absent settlement. Upon remand, the Arbitrator should address the merits of the grievance.

   Member Armendariz did not participate in this decision.

   The Arbitrator determined that this matter was not subject to arbitration. Award at 5. As such, the Arbitrator's findings of fact are very limited. Accordingly, in presenting the background, the Authority relies on facts that the parties do not appear to dispute.

   SCD is a term used by the parties, which, as testified to, means "[t]he date, either actual or constructed by crediting service, used to determine benefits that are based on how long the person has been in the [F]ederal service." Transcript at 141.

   "Creditable Service" is statutorily set forth under the civil service retirement provisions of 5 U.S.C. Chapter 83, Subchapter 3.

   An employee's "SCD" can be used as a basis for determining matters other than retirement eligibility, such as annual leave accrual or length of service for purposes of a reduction in force. See 5 U.S.C. § 6303 (annual leave accrual based on "years of service" adopting same formula for determining "creditable service" found under 5 U.S.C. § 8332 (civil service retirement)); 5 C.F.R. § 351.503 (service date used to determine priority in a RIF).