Federal Circuit: Arbitration of Removal Bound by Federal Circuit Rules, not FLRA Rules
A Department of Defense teacher employed in a school for children of military personnel was removed for misconduct in 2012. The teacher challenged her removal through the union’s negotiated grievance process in 2014, established via the union’s collective bargaining agreement with the agency. In 2018, the agency argued for the first time that the union’s request for arbitration was untimely. The arbitrator dismissed the case as untimely under the CBA because the union did not make its request within 20 days of the end of the 2012 mediation, as required by the CBA. The teacher appealed the arbitrator’s decision to the United States Court of Appeals for the Federal Circuit. On May 1, 2020, the appeals court vacated the arbitrator’s decision, and remanded the case to the arbitrator.
After she was removed, the teacher elected to challenger her removal through the negotiated grievance procedures rather than via the Merit Systems Protection Board. The agency denied her grievance, but requested that the matter be referred for mediation. The union and the agency sat for a mediation in December 2012, but no agreement was reached. On July 29, 2014, the union requested arbitration. The agency signed the request and the parties received a written list of arbitrators from the Federal Mediation and Conciliation Service. On March 25, 2015, the union and agency discussed the teacher’s grievance again. The Agency finally selected an arbitrator in January 2017. Then, on January 31, 2018, the agency argued that the 2014 initial request for arbitration was untimely. The arbitration hearing was held on April 23, 2018, and the arbitrator held that because he was bound by FLRA decisions, the case was not arbitrable because the union did not invoke arbitration within 20 days after the 2012 mediation concluded.
On appeal, the agency and the arbitrator took the position that the arbitrator was bound to apply the decisions of the FLRA. They took this position based on the arbitration agreement, which read that the “[a]rbitrator[] [was] bound by the holdings and interpretations of the Merit Systems Protection Board, the FLRA, and the Agency’s regulations as provided by law.” According to the appeals court, “[t]hat is not correct.”
The appeals court noted that the FLRA and MSPB have “different substantive jurisdictions.” Under the Civil Service Reform Act, the appeals court observed, “employment matters involving federal employees’ rights to engage in union-related activities generally may be raised with the FLRA as unfair labor practice charges, while matters involving hiring, firing, failure to promote, and the like are within the jurisdiction of the MSPB.” In Cornelius v. Nutt, 427 U.S. 648 (1985), the United States Supreme Court held that in cases where arbitration is an alternative to an MSPB appeal (such as adverse actions under 5 U.S.C. § 7512 and 7121(f)), “Congress clearly intended that an arbitrator would apply the same substantive rules as the Board does in reviewing an agency disciplinary decision.”
Therefore, the appeals court held that the arbitrator was bound by the MSPB’s substantive rules and decisions of the Federal Circuit, rather than the cases and rules of the FLRA. The appeals court reviewed the arbitration agreement under that framework, and found that the arbitrator wrongly interpreted the phrase “the date of the last day of mediation” to refer to the first mediation session because “nothing in the [agreement] provid[ed] for two mediation sessions.” The appeals court also found that the arbitrator’s reliance on FLRA decisions that allow agencies to “reject” or “cancel” a grievance if the union fails to timely file arbitration was misplaced, as those FLRA decisions were not binding in an “MSPB-related proceeding.”
Instead, the appeals court ofund that under the plain language of the agreement, the union was not required to invoke arbitration until “within twenty (20) days following the conclusion of the last stage of the grievance procedure.” [emphasis original]. Because there was a second mediation, the appeals court held that the last stage of the grievance procedure was the last date of the 2015 mediation. Because the union invoked arbitration in 2014, it was not too late.
The appeals court then addressed the government’s second argument that if arbitration was not invoked too late, it was invoked too early. Since there was a second mediation in 2015, the government argued that arbitration was invoked prior to the trigger for the union’s right to invoke arbitration (“20 days following the resolution of the mediation”). Although the appeals court observed that the Federal Circuit may consider prematurely filed notices of appeals to be ripe for review even if filed before the entry of a final judgment below, it determined that the arbitrator should address the issue in the first instance on remand before the appeals court rules on it.
For the above stated reasons, the United States Court of Appeals for the Federal Circuit vacated the arbitrator’s dismissal, and remanded the case back to the arbitrator for a determination of whether the union’s premature request for arbitration ripened into a timely one.
Read the full case: Buffkin v. Department of Defense.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.