Petition for Writ of Certiorari — Miller v. Department of the Air Force
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ly Supreme Court, U.S.
| FILED
971808 May - 61998
No. 97-
OFFICE OF THE CLERK
In The
Supreme Court of the United States
October Term, 1997
HARRY CLINTON MILLER III
Petitioner
VS.
DEPARTMENT OF THE AIR FORCE
Respondent
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Federal Circuit
PETITION FOR WRIT OF CERTIORARI
PAUL VICTOR JORGENSEN
Counsel of Record for Petitioner
215 West Main Street
Post Office Box 850
Middletown, Maryland 21769
(301) 293-6822
i
QUESTIONS PRESENTED
Did the petitioner timely file his petition under 5
U.S.C. 8§ 7121(f) & 7703(b)(1) for judicial review of an
arbitrator’s award when the petitioner filed his petition more
than 30 days after the award was issued, but less than 30
days after he had received notice that the award was final?
Is the 30 day period required under 5 U.S.C. §§
7121(f) & 7703(b)(1) for a federal employee to file a judicial
petition to review an arbitration award affirming his removal
from federal employment subject to the rule of equitable
tolling? = ~
il
LIST OF PARTIES
The names of all parties to the proceedings in the
court whose judgment is sought to be reviewed here appear
in the caption of the case.
SL PIE ee BEIM STO ae Ret a eal Se a GA I scr an N et aarah a. Ve
ili
TABLE OF CONTENTS
Questions Presented
List of Parties
Table of Contents
Table of Authorities
Opinions and Orders Below
Statement of Jurisdiction
Provisions Involved in the Case
Statement of the Case
Reasons for Granting the Writ
The Statutory and Regulatory Background Show
a National Need for Guidance by this Court
The Arbitrator’s Award Was Not Final Until
the FLRA’s Decision Provided Miller With the
Same Notice of Finality and Process for Judicial
Review Required of Final Decisions of the MSPB
The Dismissal of Miller's Appeal Contravenes
this Court's Holding in Irwin vy. Dept. of
Veteran Affairs that the Rule of Equitable
Tolling Is Presumed to Be Incorporated
Conclusion
+.
iii
20
24
iV
Contents
Appendix A -- Order of the United States
Court of Appeals for the Federal Circuit
filed February 5, 1998 la
Appendix B -- Order of the United States
Court of Appeals for the Federal Circuit
filed June 19, 1997 4a
Appendix C -- Order Dismissing Exceptions
issued by the Federal Labor Relations Authority
on February 26, 1997 7a
Appendix D -- Order to Show Cause issued
by the Federal Labor Relations Authority on
December 6, 1996 10a
Appendix E -- Notice of docketing issued by
the Federal Labor Relations Authority on
December 4, 1996 | 14a
Appendix F -- Award of Arbitrator issued
October 22, 1996 l6a
Appendix G -- Motion to Remand filed by
Miller in the United States Court of Appeals
for the Federal Circuit 32a
Appendix H -- Petition for Review filed in
the United States Court of Appeals for the
Federal Circuit 37a
Appendix I -- Union's response to Order to
Show Cause issued by the Federal Labor
Relations Authority 39a
Vv
Contents
Appendix J -- Excerpt from Union's Exception
to the Award of Arbitrator filed with the
Federal Labor Relations Authority on
November 18, 1996 42a
Appendix K -- Excerpt from Labor-Manage-
ment Contract between Dover Air Force Base
and Local 1709, American Federation of
Government Employees 44a
TABLE OF AUTHORITIES
Cases
American Pipe & Construction Co. v. Utah,
biatidbcpte Musi SLi Lig BOERS Pe Tn ae ner ene 23
Brown v. National Highway Safety Administration,
6/3 £20 S00 (DC. Cr, $08 i 18
Burnett v. New York Central R. Co.,
vin We: MAW CEOEO oo ee a3
Cornelius v. Nutt, 472 U.S. 648 De =) eat 12, 14, 18
Crown Cork & Seal v. Parker, 462 U.S. 345
USPOBE is ce thas ba pew ne deg et been ee unas 23
Dean v. Veterans Admin. Regional Office, 943 F.2d
667 (6th Cir., 1991), vacated and remanded,
ire EB, Oe EOE ee ie ee ia
Garfield v. United States, 211 U.S. 249 CSP 66 oY 19
vi
Authorities
Haines v. Merit Systems Protection Board,
44 F.3d 998 (Fed. Cir., 1995) ......-0 eee eee 13,18
Herb v. Pitcairn, 325 U.S. 77 (1945) «16. eee ees 23
Howell v. Merit Systems Protection Board,
785 F.2d 282 (Fed. Cir., 1986) .......- seer eee eeee 17
Inwin v. Department of Veteran Affairs, 498 U.S. 89
(1990) oi. ch Sie dee ek rates tee eases 12, 20, 21
Johnson v. U.S. Postal Service, 64 F.3d 233 (6th
Cig. LOOSE SUR ce eek ea ee 22
Kumferman v. Department of Navy,
785 F.2d 286 (Fed. Cir., 1986) ......--0 seers eeee 18
Lindahl v. Office of Personnel Management,
470 U.S. 768 (1985S) 2... 2. cence ener eee e ee enrers 19
McCormack v. United States, 204 Ct. Cl. 371
(1974) esi sk oy ciao sa pee eee eee lie Ge area 19
Monzo v. Department of Transportation, Federal
Aviation Administration, 735 F.2d 1335
(Fed. Cir., 1984). 2... cece eect eee e eer ere neces 20
Nunnally v. MacCausland, 998 F.2d 1
(1st Ciz., 1993). ices cece ees ecerte erence noes 21,22
Pinat v. Office of Personnel Management, 931 F.2d
1544 (Fed. Cir., 1991) 0.2... eee eee eee ee erences 20
Shubinsky v. United States, 203 Ct. Cl. 199, 488
F.2d 100 F.3d 999 (D.C. Cir., 1996) ... 6... 0s sees: 19
Vii
Authorities
Strickland v. Merit Systems Protection Board,
748 F.2d 681 (Fed. Cir.. RR i ecacae cok 13,18
Torres v. Oakland Scavenger Company, 487 U.S.
POM LENMeE ete uig Sa pee yee et hee oo 23
Statutes and Regulations
ae Sieh BUREN OU GUC t lca ree ak 2
iste en OB Se ag REE er aE OO a NL ee 13
shee gin adh FSI UEP ROOM aN te ae ea Poa passim
whet og SA Liud GORE POR Te eC ORT tere 4,14
“insect 2 hs. GAP RRARMOOEE Sete pt rie UPR raeta Baten 4
OWE Te AOS isd ata de passim
sdbegttain | oc, SRST PORE ne teat ee 4,13,14
PERI OEE ney Ce yeas 13
PUT BIE EER oh cg cee a 7,14,15,18
thee iw MOE SES cry un ie wns 8,13,14,15
Pe Oe MME oy ye ee ie aera, 8
l
In the
Supreme Court of the United States
October Term, 1997
HARRY CLINTON MILLER II]
Petitioner
VS.
DEPARTMENT OF THE AIR FORCE
Respondent
Petition for a Writ of Certiorari to the United
States Court of Appeals for the Federal Circuit
Petitioner Harry Clinton Miller II] respectfully
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Federal Circuit.
OPINIONS AND ORDERS BELOW
The final decision of the United States Court of
Appeals for the Federal Circuit dismissing Miller v. Department
of the Air Force, No. 97-3260 is unreported, and is reproduced
in Appendix A. The earlier order of the United States Court
of Apeals of the Federal Circuit directing Miller to show cause
why his appeal should not be dismissed is also unreported,
and is reproduced in Appendix B. The order of the Federal
a
2
Labor Relations Authority dismissing exceptions of Local
1709 in the administrative proceedings before the Authority
is reproduced as Appendix C, and the preceeding order of the
Federal Labor Relations Authority directing Local 1709 to
show cause why its exceptions should not be dismissed is
reproduced as Appendix D. The notice of docketing issued
by the Federal Labor Relations Authority is reproduced as
Exhibit E. The underlying award of the arbitrator denying
Miller's grievance and sustaining his removal is reproduced as
Apprendix F.
STATEMENT OF JURISDICTION
The final order of the United States Court of Appeals
for the Federal Circuit dismissing Miller's appeal was
rendered on February 5, 1998. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
PROVISIONS INVOLVED IN THE CASE
5 U.S.C. § 7121. Grievance procedures
(a)(1) Except as provided in paragraph (2) of this subsection,
any collective bargaining agreement shall provide procedures
for the settlement of grievances, including questions of
arbitrability. Except as provided in subsections (d), (e), and
(g) of this section, the procedures shall be the exclusive
administrative procedures for resolving grievances which fall
within its coverage.
(2) Any collective bargaining agreement may exclude any
matter from the application of the grievance procedures
which are provided for in the agreement.
(b)(1) Any negotiated grievance procedure referred to in
subsection (a) of this section shall --
(A) be fair and simple,
_
3
(B) provide for expeditious processing, and
(C ) include procedures that --
* x * *
(iii) provide that any grievance not satisfactorily
settled under the negotiated grievance procedure shall
be subject to binding arbitration which may be
invoked by either the exclusive representative or the
agency.
* * - *
(e)(1) Matters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated
grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures of
section 7701 of this title or under the negotiated procedure,
but not both. ... An employee shall be deemed to have
exercised his option under this subsection to raise a matter
either under the applicable appellate procedures or under the
negotiated grievance procedure at such time as the employee
timely files a notice of appeal under the applicable appellate
procedures or timely files a grievance in writing in accordance
with the provisions of the parties’ negotiated grievance
procedure, whichever event occurs first.
(2) In matters covered under sections 4303 and 7512 of
this title which have been raised under the negotiated
grievance procedure in accordance with this section, an
arbitrator shall be governed by section 7701(c)(1) of this
title, as applicable.
(f) In matters covered under sections 4303 and 7512 of this title
which have been raised under the negotiated grievance procedure in
accordance with this section, section 7703 of this title pertaining to
judicial review shall apply to the award of an arbitrator in the same
manner and under the same conditions as if the matter had been
decided by the Board.
*_ * * *
[Emphasis added. }
+
5 U.S.C. § 7122. Exceptions to arbitral awards
(a) Either party to arbitration under this chapter [5 USCS §§
7101 et seq.] may file with the [Federal Labor Relations]
Authority an exception to the arbitrator's award pursuant to
the arbitration (other than an award relating to a matter described
in section 7121(f) of this title). If upon review the Authority
finds that the award is deficient--
(1) because it is contrary to any law, rule, or regulation;
or
(2) on other grounds similar to those applied by Federal
courts in private sector labor-management relations;
the Authority may take such action and make such
recommendations concerning the award as it considers
necessary, consistent with applicable laws, rules, or
regulations.
(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30-day period
beginning on the date the award is served on the party, the
award shall be final and binding. An agency shall take the
actions required by an arbitrator's final award. The award
may include the payment of backpay (as provided under
section 5596 of this title).
[Emphasis added. |
5 U.S.C. § 7512. Actions covered
This subchapter [Suchapter II of Title 5] applies to --
(1) a removal;
> + . o
5 U.S.C. § 7701. Appellate procedures
(a) An employee, or applicant for employment, may submit
Nn
an appeal to the Merit Systems Protection Board from any
action which is appealable to the Board under any law, rule,
or regulation. An appellant shall have the right--
(1) to a hearing for which a transcript will be kept;
and
(2) to be represented by an attorney or other
representative.
Appeals shall be processed in accordance with regulations
prescribed by the Board.
* » * *
(c )(1) Subject to paragraph (2) of this subsection. the
decision of the agency shall be sustained under subsection (b)
only if the agency's decision --
(A) in the case of an action based on unacceptable
performance described in section 4303 or a removal from
the Senior Executive Service for failure to be recertified
under section 3393a, is supported by substantial
evidence; or
(B) in any other case is supported by a preponderance of
the evidence.
(2) Nothwithstanding paragraph (1), the agency’s decision
may not be sustained under susbsection (b) of this section if
the employee or applicant for employment--
(A) shows harmful error in the application of the
agency's procedures in arriving at such decision:
(B) shows that the decision was based on any prohibited
personnel practice described in section 2302(b) of this
title; or
(C ) shows that the decision Was not in accordance with
law.
* * x 7
5 U.S.C. § 7703. Judicial review of decisions of the
Merit Systems Protection Board
(a)(1) Any employee or applicant for employment adversely
6
affected or aggrieved by a final order or decision of the Merit
Systems Protection Board may obtain judicial review of the
order or decision.
(2) The Board shall be named respondent in any
proceeding brought pursuant to this subsection, unless the
emplovee or applicant for employment seeks review of a final
order or decision on the merits on the underlying personne!
action or on a request for attorney fees, in which case the
agency responsible for taking the personnel action shall be
the respondent.
(b)(1) Except as provided in paragraph (2) of this subsection
(cases of discrimination], a petition to review a final order or
final decision of the Board shall be filed in the United States
Court of Appeals for the Federal Circuit. Notwithstanding any
other provision of law, any petition for review must be filed within 30
days after the date the petitioner received notice of the final order or
decision of the Board.
(2) Cases of discrimination subject to the provisions of
section 7702 of this title shall be filed under section 717(c)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)),
section 15(c) of the Age Discrimination in Employment Act
of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair
Labor Standards Act of 1938, as amended (29 U.S.C.
216(b)), as applicable. Notwithstanding any other provision
of law, any such case filed under any such section must be
filed within 30 days after the date the individual filing the
case received notice of the judicially reviewable action under
such section 7702.
(c ) In any case filed in the Court of Appeals for the Federal
Circuit, the court shall review the record and hold unlawful
and set aside any agency action, findings, or conclusions
found to be --
(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
SOR ee een Oe ee eee Fee ae ee ere
De VPage Vem en
7
(2) obtained without procedures required by law, rule,
or regulation having been followed:
(3) unsupported by substantial evidence:
> * * *
[Emphasis added. |
5 C.F.R. § 1201.111 Initial decision by judge.
(a) The judge will prepare an initial decision after the
record closes, and will serve that decision on the Clerk of the
Board, on the Director of the Office of Personnel
Management, and on the parties to the appeal, including
named parties, permissive intervenors, and intervenors of
right.
(b) Each initial decision will contain:
(1) Findings of fact and conclusions of law upon all
the material issues of fact and law presented on the record;
(2) The reasons or bases for those findings and
conclusions;
(3) An order making final disposition of the case,
including appropriate relief:
(4) A statement, if the appellant was the prevailing
party, as to whether interim relief is provided effective upon
the date of the decision, pending the outcome of any petition
for review filed by another party under subpart C of this part;
(5) The date upon which the decision will become
final (a date that, for purposes of this section, is 35 days after
issuance); and
(6) A statement of any further processes available,
including, as appropriate, a petition for enforcement under §
1201.182 of this part, a petition for review under §
1201.114, and a petition for judicial review.
+ * * *
8
5 C.F.R. § 1201.113 Finality of decision.
The initial decision of the judge will become final 35
days after issuance. Initial decisions are not precedential.
(a) Exceptions. The initial decision will not become
final if, within 35 days after issuance of the decision, any
party files a petition for review, or if the Board reopens the
case on its own motion.
(b) Petition for review denied. If the Board denies all
petitions for review, the initial decision will become final
when the Board issues its last decision denying a petition for
review.
(c ) Petition for review granted or case reopened. If the
Board grants a petition for review or cross-petition for review,
or reopens or dismisses a case, the decision of the Board is
final if it disposes of the entire case.
* * * *
(e) Exhaustion. Administrative remedies are exhausted
when a decision becomes final in accordance with this
section.
5 C.F.R. § 2425.1 Who may file an exception; time
limits for filing; opposition; service.
(a) Either party to arbitration under the provisions of
chapter 71 of title 5 of the United States Code may file an
exception to an arbitrator's award rendered pursuant to the
arbitration.
(b) The time limit for filing an exception to an
arbitration award is thirty (30) days beginning on the date
the award is served on the filing party.
x * * *
5 C.F.R. § 2425.3 Grounds for review.
(a) The Authority will review an arbitrator's award to
9
which an exception has been filed to determine if the award
is deficient --
(1) Because it is contrary to any law, rule or
regulation; or
(2) On other grounds similar to those applied by
Federal courts in private sector labor-management relations.
(b) The Authority will not consider an exception with
respect to an award relating to:
x * * *
(2) Aremoval, suspension for more than fourteen ( 14)
days, reduction in grade, reduction in pay, or furlough of
thirty (30) days or less covered under 5 U.S.C. 7512; or
x * * *
STATEMENT OF THE CASE
This petition arises from the decision of the United
States Court of Appeals for the Federal Circuit to dismiss
Petitioner Harry Miller III’s appeal of an arbitration award
that affirmed his removal from the employment of the
Respondent Department of the Air Force [(“the-Air Force”].
The Air Force employed Miller as a civilian aircraft
mechanic at the Dover Air Force Base in Delaware. On
August 8, 1995, the Air Force assigned Miller and airman
Brian Poynter to replace an engine filter pack assembly on
the number 2 engine of a C5-A aircraft. This work required
the reconnection of certain hydraulic hoses. [App 19a]
Miller began to assist a third mechanic who was
repairing the aircraft's number | engine. Shortly before
closing time, Poynter told Miller that he was leaving. [App
19a} Before he left, Poynter signed a repair form certifying
that he had completed the replacement of the engine filter
pack assembly on the number 2 engine. Miller later signed
the same form certifying that he had inspected and approved
10
Poynter's work. [App 20a]
When the next shift employees tested the number 2
engine, it dispelled a fine mist followed by a leak of fluid.
The engine was shut down, and two disconnected hydraulic
hoses were discovered. [App 20a]
Based on this incident, the Air Force charged Miller
with intentional misrepresentation and negligence, and
decided to remove him. [App 20a] Rather than appealing his
removal to the Merit Systems Protection Board, Miller
contested it in a grievance submitted pursuant to the local
collective bargaining agreement. [App 44a-58a] Miller's
grievance was unsuccessful, and eventually the Air Force and
Miller’s union, Local 1709 of the American Federation of
Government Employees [“Local 1709"], scheduled the
dispute for arbitration. [App 22a]
An arbitrator heard testimony and received evidence
on three occasions over a period of two weeks ending on
August 7, 1996. [App 18a] No transcript or other record was
made of these proceedings. [App 33a]
On October 22, 1996, the arbitrator issued an award
that affirmed Miller’s removal. [App 1 6a-17a] The arbitrator
found that the evidence did not support the charge that
Miller had intentionally misrepresented his inspection of the
repair, but was sufficient to show negligence. [App 29a-30a]
The arbitrator refused to mitigate the penalty, reasoning that
removal was justified because the charges were alleged to be
a repeated offense. [App 28a & 31a]
The arbitration award did not state a date upon which
it would become final, nor did it contain any information
concerning any further recourse available to Miller, such as
a petition for judicial review. [App | 6a-31a]
Pe penne
1]
As specified by the procedures agreed to by Local
1709 and the Air Force in the collective bargaining agreement
[App 47a, § 10], Local 1709 challenged the arbitrator's award
by filing an exception with the Federal Labor Relations
Authority [“FLRA”]. In its exception, Local 1709 asserted
that there was no evidence of any prior offenses, and that the
penalty of removal was excessive. [App 42a-43a]
The FLRA docketed Local 1709's exception, and
provided notice of the docketing to Local 1709 and the Air
Force. [App 14a-15a] On December 6, 1996, the FLRA
ordered Local 1709 to show cause why its exception should
not be dismissed because it related to a matter, the removal
of a federal employee, over which the FLRA lacked
jurisdiction. [App 10a-13a] Local 1709 responded in a
memorandum contending that the FLRA had jurisdiction
because the exception encompassed an unfair labor practice.
[App 39a-4 1a]
On February 26, 1997, the FLRA issued an order
dismissing Local 1709's exception, ruling that the FLRA
lacked jurisdiction because the arbitration award involved the
removal of a federal employee. [App 7a-9a] The order stated
that review of such awards “may be sought by appeal to the
U.S. Court of Appeals for the Federal Circuit in accordance
with 5 U.S.C. § 7703.” [App 8a] The order also declared
that the FLRA’s review was at an end: “The Authority will
not take further action on this matter.” [App 9a]
Miller received the FLRA’s order of dismissal on
March 10, 1997. [App 37a] He retained private counsel and
filed a petition to review the arbitrator's award in the United
States Court of Appeals for the Federal Circuit. [App 37a-
38a] Miller's petition was filed on March 27, 1997, 17 days
after he had received the FLRA’s dismissal of the exception,
but 156 days after the arbitrator's award was issued. [App 2a}
|?
=
Miller moved the Federal Circuit to remand the case
back to arbitration for development of a record capable of
review. [App 32a-36a] The Air Force consented to the
remand. [App 36a] The Federal Circuit sua sponte ordered
Miller to show cause why his petition for review should not
be dismissed because it had been filed more than 30 days
after the abitrator’s decision. [App 4a-a]
Miller responded in a memorandum that his petition
to review was timely because he did not receive notice that
the arbitrator's order was final until the FLRA had dismissed
Local 1709's exception on February 26, 1997, and that the
period for filing his petition was tolled until that date. [App
2a} The Air Force argued that the time for filing Miller's
petition commenced on October 22, 1996, the date of the
arbitrator's award, that the doctrine of equitable tolling was
inapplicable, and that the court lacked jurisdiction to review
Miller's petition. The Federal Circuit agreed with the Air
Force, and on February 5, 1998 issued its order to dismiss
Miller's appeal. [App la-3a]
REASONS FOR GRANTING THE WRIT
This Court should grant the writ because the decision
of the United States Court of Appeals for the Federal Circuit
perpetuates a litigation trap that has repeatedly engulfed
diligent appellants in a manner contrary to the plain language
and intent of the Civil Service Reform Act of 1978. See
Cornielius v. Nutt, 472 U.S. 648, 660 (1985) (“Congress
clearly intended that an arbitrator would apply the same
substantive rules as the Board does in reviewing an agency
disciplinary decision.”). Moreover, the decision contravenes
this Court's pronouncement that the same rule providing for
equitable tolling of suits against private defendants is
presumed to apply to suits against the United States. Inwin
v. Department of Veteran Affairs, 498 U.S. 89 (1990).
13
The Statutory and Regulatory Background Show
a National Need for Guidance by this Court
In the Civil Service Reform Act of 1978 (the “Act”),
Congress established a bifurcated system for civil servants to
obtain review of agency disciplinary action. An agency may
initiate adverse action against an employee that includes
removal, suspension for more than 14 days, reduction in
grade or pay, or a furlough of 30 days or less for “such cause
as will promote the efficiency of the agency.” 5 U.S.C. §§
7512 & 7513. The employee may challenge such an adverse
action by appealing the agency's decision to the Merit
Systems Protection Board (“MSPB") under the procedures
set forth in 5 U.S.C, § 770]. See 5 U.S.C. § 7513(d).
Section 7703 of Title § provides for judicial review of
a final decision of the MSPB. Any employee “adversely
affected or aggrieved by a final order or decision of the Merit
Systems Protection Board may obtain judicial review of the
order or decision.” 5 U.S.C. § 7703(a)(1). To obtain such
review, an employee must file a petition for review in the
United States Court of Appeals for the Federal Circuit
“within 30 days after the date the petitioner received notice of the
final order or decision of the Board.” 5 U.S.C. § 7703(b)(1)
[Emphasis added.]. The United States Court of Appeals for
the Federal Circuit has exclusive jurisdiction over such an
appeal. 28 U.S.C. § 1295(a)(9).
The Federal Circuit relies on the MSPB’s criteria at 5
C.F.R. § 1201.113 to determine what constitutes a final order
of the MSPB. Haines v. Merit Systems Protection Board, 44 F 3d
998, 1000 (Fed. Cir. 1995); Strickland v. Merit Systems
Protection Board, 748 F.2d 681, 684 (Fed. Cir., 1984). An
initial decision of an MSPB judge becomes a final order 35
days after its issuance unless during that period a party files
a petition for review, or if the MSPB reopens the case on its
14
own motion. 5 C.F.R. § 1201.113. An MSPB initial decision
must be served on all of the parties, and must contain the
date upon which the decision will become final and a
statement of further processes available, including a petition
for judicial review. 5 C.F.R. §§ 1201.111(b)(5) & (6).
As an alternative to an appeal through the MSPB, if
an employee is a member of a federal employee's labor union,
he may challenge a disciplinary action using the grievance
and arbitration procedures that must be provided in the
collective-bargaining agreement between the agency and the
union. 5 U.S.C. §§ 7121(a) & (b). If the employee elects to
proceed under the grievance procedures, and the union or the
agency invokes binding arbitration, the arbitrator must apply
the same substantive rules as the MSPB in reviewing the
agency's action. Cornelius v. Nutt, supra, 472 U.S. at 660.
As to any arbitration award other than one related to
a matter described in 5 U.S.C. § 7121(f), either the union or
the agency has the right to file an exception with the Federal
Labor Relations Authority (“FLRA”). 5 U.S.C. § 7122(a). If
no exception is filed within 30 days after the award is served,
the award becomes final and binding. 5 U.S.C. § 7122(b).
But matters described in 5 U.S.C. § 7121(f), including serious
adverse actions under 5 U.S.C. § 7512, are subject to judicial
review “in the same manner and under the same conditions”
as if decided by the MSPB:
In matters covered under sections 4303 and
7512 of this title which have been raised
under the negotiated grievance procedure in
accordance with this section, section 7703 of
this title pertaining to judicial review shall
apply to the award of an arbitrator in the
same manner and under the same conditions
as if the matter had been decided by the
15
Board.
5 U.S.C. § 7121(f).
Thus the bifurcated review process available for
serious adverse actions merges once a final decision by either
the MSPB or an arbitrator has been issued. In either event,
in order to obtain further review, the petitioner must file an
appeal to the Federal Circuit pursuant to 5 U.S.C. §
7703(b)(1). If the petitioner challenges an arbitration award,
section 7703 pertaining to judicial review applies in the same
manner and under the same conditions as if the matter were
decided by the MSPB. 5 U.S.C. § 7121(f).
The implementation of this process has led to multiple
errors and widespread confusion. Union representatives who
are not lawyers advise and represent employees who elect to
have their adverse actions reviewed under the grievance and
arbitration procedures. As illustrated by this case, the Court
of Appeais for the Federal Circuit has refused to require
arbitration awards to comply with the notice requirements of
MSPB decisions under 5 C.F.R. §§ 1201.111 & 1201.113.
The FLRA has reviewed and dismissed for lack of jurisdiction
dozens of cases in which a federal labor union has mistakenly
filed exceptions to arbitration awards with the FLRA: See,
e.g., US Dept. Of Defense, Army and Air Exchange Service, Dallas,
TX and AFGE, Local 3854, 51 FLRA No. 138 (1996); AFGE,
Local 1668 and US Dept. of Air Force, AK, 49 FLRA No. 151
(1994); US Dept of Agriculture Forest Service, Northern Region,
Idaho Panhandle National Forests and NFFE, Local 1818, 49
FLRA No. 143 (1994); Local 171 and U.S. Dept. of Justice,
Federal Bureau of Prisons, Federal Correctional Institution, El Reno,
OK, 49 FLRA No. 138 (1994); US Dept. of Treasury, IRS,
Cleveland District and NAGE, Chapter 37, 49 FLRA No. 134
(1994); AFGE, Local 3529 and US Dept. of Defense, Defense
Contract Audit Agency, Central Region, 49 FLRA No. 131
16
(1994); Panama Canal Commission and Maritime Metal Trades
Council, 49 FLRA No. 126 (1994); AFGE, Local 2836 & Dept.
of Veteran Affairs, Sam Rayburn Memorial Veterans Center, 48
FLRA No. 153 (1994); US Dept. of Justice, Federal Bureau of
Prisons, Federal Prison Camp, Alderson, W VA and AFGE, Local
1494, 47 FLRA No. 49 (1993); US Dept. of Transp., FAA and
National Air Controllers Asso., 43 FLRA No. 103 (1992); AFGE
& Dept. of Health & Human Services, Social Security
Administration, Office of Hearings & Appeals, 31 FLRA No. 100
(1988); US Army Missile Command Red Stone Arsenal & AFGE,
31 FLRA No. 45 (1988); Mare Island Naval Shipyard &
Federal Employees Metal Trades Council, 29 FLRA No. 113
(1987); Warner Robins Air Logistics Center & AFGE, 25 FLRA
No. 25 (1987); Bureau of Prisons & AFGE, 23 FLRA No. 102
(1986); Portsmouth Naval Shipyard & FENTC, 22 FLRA No.
78 (1986); SSA and AFGE, 21 FLRA No. 40 (1986); National
Weather Service Employees Organization & Nat. Weather Service,
17 FLRA No. 91 (1985); Veterans Administration Medical
Center & AFGE, 16 FLRA No. 113 (1984); VA Medical Center
& Illinois Nurses Asso., 16 FLRA No. 46 (1984); AFGE &
Navy Resale & Services Office, 16 FLRA No. 25 (1984);
Department of Defense Dependents Schools & Overseas Education
Asso., 16 FLRA No. 7; HHS, SSA, Mid-America Program Service
Center, 13 FLRA No. | (1983); Department of Air Force, 8
FLRA No. 41 (1982).
In spite of the frequency of such misfiled exceptions,
the Federal Circuit has never published a decision that
reflects its view that an arbitration award sustaining a serious
adverse action is final without the notice of finality required
of MSPB decisions, nor subject to the rule of equitable
tolling. Unsophisticated civil servants continue to rely on
labor unions to protect their employment rights, while union
representatives continue to misfile exceptions with the FLRA
ee TE ee et aT On ae eee ‘ =
seeking review of arbitration awards involving serious adverse
actions.
17
The Arbitrator’s Award Was Not Final Until
the FLRA’s Decision Provided Miller With the
Same Notice of Finality and Process for Judicial
Review Required of Final Decisions of the MSPB
Section 7121(f) of Title 5 provides that “section 7703
of this title pertaining to judicial review shall apply to the
award of an arbitrator in the same manner and under the same
conditions as if the matter had been decided by the Board.”
[Emphasis added.) Section 7703(b)(1) sets out the conditions
governing the period for the submission of a petition for
review: “Notwithstanding any other provision of law, any
petition for review must be filed within 30 days after the date
the petitioner received notice of the final order or decision of the
Board.” [Emphasis added.] Hence the plain language of the Act
triggers the period for the filing of a judicial review of an
arbitrator's decision from the date that the petitioner receives
notice of a final decision, not simply the date that he receives a
final decision.
In the context of judicial review of MSPB appeals, the
Federal Circuit has construed Section 7703(b)(1) to require
that the employee must be provided with notice of finality by
the MSPB in order to trigger the thirty (30) period for
seeking judicial review:
Thus, the time for judicial review runs from
notice of finality. The first possible “notice” is
contained in the presiding official's decision
itself, namely the notice that the decision will
become final on a particular day. [Emphasis
added. |
Howell v. Merit Systems Protection Board, 785
F.2d 282, 284 (Fed. Cir. 1986).
18
Also see Kumferman v. Department of Navy, 785 F.2d 286, 288-9
(Fed. Cir., 1986) (30 day appeal period under 5 U.S.C. §
7703(b)(1) does not commence until the petitioner has
received actual notice of the final decision); Brown v. National
Highway Traffic Safety Administration, 673 F.2d 544 (D.C. Cir.,
1982) (appeal period under § 7703(b)(1) commences from
the date of receipt of the final decision by petitioner himself,
not from the date received by petitioner's counsel).
The regulations governing MSPB proceedings assure
that all MSPB appellants receive notice of the finality of any
decisions, as well as notice of the processes for obtaining
review of such decisions. 5 C.F.R. § 1201.111 requires an
initial decision to provide notice of the date that it will
become final, and a statement of any further remedies
available, including a petition for review to the MSPB and a
petition for judicial review to the Federal Circuit.
But in applying § 7703 to the judicial review of an
arbitrator's decision, the Federal Circuit has misconstrued the
period for filing an appeal under to run from the date of
issuance of the award, not from “the date the petitioner
received notice of the final decision” as specified by the plain
language of § 7703(b)(1). As justification for this
misconstruction, the Federal Circuit reasons that Cornelius v.
Nutt does not require an abitrator to apply rules “which relate
to the Board’s own internal procedures.” [App 2a]
In Cornelius v. Nutt, this Court held that the Act
required an arbitrator to apply the same interpretation of
harmful error as had been promulgated by the MSPB in its
regulations. Id., 472 U.S. at 657-659. This Court soundly
rejected any notion that Congress intended for an arbitrator
to rely on different substantive standards than would be
applied by an administrative law judge or appeals officer if
the case had been appealed to the MSPB. Id. at 660-662.
19
The Federal Circuit's rationale that the MSPB’s
requirement for notice of finality is not a substantive rule but
merely an “internal procedure” ignores the significance of the
requirement of notice of finality in an adversary proceeding.
A litigant’s failure to be appraised of the finality of a decision
and the significance of that finality can be fatal to his right of
judicial review, as it was in this case. Notice and the
corresponding opportunity to be heard are the essence of due
process. Garfield v. United States, 211 U.S. 249 (1908).
The MSPB’s requirement for notice of finality does
not simply relate to its “own internal procedures,” but is a
long-standing agency interpretation of procedures appropriate
to implement the notice of a final decision under 5 USC §
7703(b)(1). It embodies the long-recognized principle that
the limitations period for filing a federal employment appeal
does not begin until the employee receives notice of his
appeal rights. McCormack v. United States, 204 Ct.Cl. 371,
380-81 (1974); Shubinsky v. United States, 203 Ct.Cl. 199.
204, 488 F.2d 1003, 1006 (1973). Congress is presumed to
be aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it-reenacts a
statute without change. Lindahl v. Office of Personnel
Management, 470 U.S. 768, 782, fn 15 (1985). Only upon a
showing of clear and convincing evidence of a contrary
legislative intent should the courts restrict access to judicial
review. Id. at 778.
The legislative history of the Act does not manifest
any such intent. On the contrary, the history demonstrates
that it was Congress's intention to require an arbitrator to
follow the same due process safeguards as would be applied
by the MSPB. Senate Report No. 95-969 emphasized that
“an arbitrator must establish a record that will meet the
judicial tests provided for in section 7702 of this title
[codified as 5 USC § 7703].” Sen. Rep. No. 95-969 pill,
20
1978 U.S.C.C.A.N. (legislative history) 2833.
Miller did not receive notice that the arbitrator's
award was final or what further processes were available until
after the FLRA’s order dismissing Local 1709's exception was
issued on February 26, 1997. Upon receiving that order,
Miller promptly retained counsel and filed his petition for
review in the Federal Circuit. Miller's petition was submitted
within thirty days after his receipt of the notice of finality
provided by the FLRA’s order. Under the plain language of
5 U.S.C. § 7703(b)(1), Miller’s appeal was timely.
The Dismissal of Miller’s Appeal Contravenes this Court's
Holding in Irwin v. Dept. of Veteran Affairs that the
Rule of Equitable Tolling Is Presumed to Be Incorporated
The Federal Circuit cited two decisions in support of
its ruling that the time period under 5 U.S.C. § 7303(b)(1)
is mandatory and jurisdictional: Pinat v. Office of Personnel
Management, 931 F.2d 1544 (Fed. Cir., 1991), and Monzo v.
Department of Transportation, Federal Aviation Administration,
735 F.2d 1335 (Fed. Cir., 1984). [App 2a] Pinat and Monzo
each presented a failure of a petitioner to timely file a
petition for judicial review after receiving an MSPB denial of
an administrative petition to review an initial decision. There
was no suggestion in either case that the MSPB had failed to
provide notice of a final decision. Monzo did not consider
equitable tolling, and Pinat only tersely alluded to it in a
footnote, stating that “This is not a case in which the
doctrine of equitable tolling applies.” 931 F.2d at 1546.
In Irwin v. Department of Veteran Affairs, supra, 498
U.S. 89 (1990), this Court firmly established the principle
that Congress is presumed to have incorporated the rule of
equitable tolling in statutory time requirements governing
proceedings against the United States:
21
Once Congress has made such a waiver [of
sovereign immunity permitting suit against the
Government], we think that making the rule
of equitable tolling applicable to suits against
the Government, in the same way that it is
applicable to private suits, amounts to little, if
any, broadening of the congressional waiver.
Such a principle is likely to be a realistic
assessment of legislative intent as well as a
practically useful principle of interpretation.
We therefore hold that the same rebuttable
presumption of equitable tolling applicable to
suits against private defendants should also
apply to suits against the United States.
Irwin v. Department of Veteran Affairs, supra,
498 U.S. at 95-96.
Because only the Federal Circuit has jurisdiction over
appeals arising under 5 USC § 7703(b)(1), no other circuits
have considered the application of Invin to § 7703(b)(1).
However, the First and Sixth Circuits have considered the
impact of Invin on the almost identically worded limitation
period for seeking judicial review of an MSPB case of
discrimination under 5 U.S.C. § 7703(b)(2), but with
conflicting results.
In Nunnally v. MacCausland, 998 F.2d | (Ist Cir.,
1993), the First Circuit determined that the 30 day period in
§ 7703(b)(2) may be equitably tolled in an appropriate case.
The plaintiff had appealed from a summary judgment of the
district court holding that the plaintiff's mental illness would
not justify an equitable delay in the onset of the limitations
period. The First Circuit reversed, ruling that the plaintiff
had provided sufficient evidence to invoke the doctrine of
equitable tolling under Invin:
22
The CSRA limitations period in issue
here is not only similar to, but interesects
with, the EEOA provision directly addressed
in Irwin. Together the two statutes provide a
series of interdependent supplementary and
parallel channels for federal employees seeking
administrative review of claims alleging
prohibited discrimination.
* * * *
We see no principled reason for failing
to extend Jnwin's rebuttable presumption to
the instant filing deadline. The only
arguments to the contrary below were similar
to those rejected in Jnvin, and the government
has not renewed them here.
Nunnally v. MacCausland, supra, 998 F.2d at 3.
By contrast to Nunnally, the Sixth Circuit has ruled
that § 7703(b)(2) cannot be equitably tolled despite the
holding of this Court in Inwin. See Johnson v. U.S. Postal
Service, 64 F.3d 233, 238 (6th Cir., 1995); Dean v. Veterans
Admin. Regional Office, 943 F.2d 667, 670 (6th Cir., 1991),
vacated and remanded on other grounds, 503 U.S. 902 (1992).
The Sixth Circuit has reasoned that Congress's use of the
predicate clause “Notwithstanding any other provision of
law” manifests an intent not to allow equitable tolling under
§ 7703(b)(2). Id. However, the Sixth Circuit was also careful
to couch the outcome in both Johnson and Dean on alternative
grounds.
The First Circuit’s ruling in Nunnally adheres more
closely to this Court’s instructions in Jnwin than the Sixth
Circuit’s decisions in Johnson and Dean, and the Federal
Circuit’s decision in this case. Nothing in the legislative
history of the Civil Service Reform Act of 1978 suggests that
23
Congress intended to depart from the doctrine of equitable
tolling when an employee never received notice of finality.
On the contrary, the plain language of § 7703(b)(1)
manifests Congress's intent to commences the running of the
period for judicial review upon the employee's receipt of
notice of finality.
The application of the rule of equitable tolling does
not defeat the period of limitations under § 7703(b)(1).
When equitable tolling applies to a statute of limitations, the
statutory time period is deemed to be met, not waived. See
Crown Cork & Seal y. Parker, 462 U.S. 345, 354 (1983)
(period for private suit tolled until class certification denied);
see also Torres v. Oakland Scavenger Company, 487 U.S. 312,
315-16 (1988) (permitting imperfect but substantial
compliance with a technical requirement is not the same as
Waiving the requirement altogther). Where a time period is
met due to tolling, the consent of the sovereign to the suit
has in fact been given and jurisdiction is established.
This Court has always allowed equitable tolling in
private situations where the claimant actively and diligently
pursued his judicial remedies, although he filed a defective
pleading during the statutory period. American Pipe &
Construction Co. v. Utah, 414 U.S. 538 (1974) (plaintiff's
timely filing of a defective class action tolled the limitations
period as to the individual claims of purported class
members); Burnett v. New York Central R. Co., 380 U.S. 424
(1965) (plaintiff timely filed complaint in wrong court); Herb
v. Pitcairn, 325 U.S. 77 (1945) (same). In this case Miller
diligently pursued appropriate legal remedies through the
arbitration procedure that had been established between his
union and the Air Force. Miller lacked any hint or other
warning that the FLRA process invoked by Local 1709 was
incorrect until after the exception was already docketed and
more than thirty days had elapsed after the arbitrator’s
24
ruling. Even after the FLRA directed Local 1709 to show
cause why its exception should not be dismissed [App | 4a-
15a], the union continued to argue that the FLRA was the
proper forum for its exception. [App 39a-41a]
The Department of the Air Force, presumably with
the assistance of counsel and other personnel experts, had
agreed to language in the collective bargaining agreement
providing that either party “may file an exception to the
arbitrator's award with the Federal Labor Relations
Authority. ..” [App 47a] Nothing in the agreement warned
an employee such as Miller that this procedure was
unavailable for arbitration awards involving serious adverse
actions. Although the parties to the agreement could not
confer jurisdiction upon the FLRA where none existed, the
agreement manifested their intention that any arbitration
award would become final only after all exceptions were
resolved by the FLRA. Such an agreement should be
honored by applying the rule of equitable tolling.
CONCLUSION
For the reasons stated, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
PAUL VICTOR JORGENSEN
Counsel of Record for Petitioner
215 West Main Street
Post Office Box 850
Middletown, Maryland 21769
(301) 293-6822
CO Te eee See eG Gee Oe ee pee ee
—
la
APPENDIX A -- ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT FILED
FEBRUARY 5, 1998
NOTE: Pursuant to Fed. Cir. R. 47.6, this order
is not citable as precedent. It is a public record.
United States Court of Appeals
for the Federal Circuit
No. 97-3260
HARRY CLINTON MILLER, III,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
Before MAYER, Chief Judge, MICHEL and PLAGER, Circuit
Judges.
MICHEL, Circuit Judge.
ORDER
The parties respond to the court’s order to show cause
why Harry Clinton Miller, III's petition for review should not
be dismissed as untimely.
Miller elected to pursue review of his removal as an
aircraft mechanic under a grievance procedure established
between his union and the Department of the Air Force. On
October 22, 1996, the arbitrator denied Miller’s grievance
2a
Appendix A
and affirmed the removal. Miller’s union representative then
filed exceptions to the arbitrator’s award with the Federal
Labor Relations Authority (FLRA). On February 26, 1997,
the FLRA rejected the exceptions and informed Miller that he
should have filed a petition for review with this court. Miller
filed his petition for review with this court on March 27,
1997, or 156 days after the arbitrator’s award.
To be timely filed, a “petition for review must be filed
within 30 days after the date the petitioner received notice of
the final order or final decision of the Board.” 5 U.S.C. 88
7121(f), 7703(b)(1). This court cannot waive the timeliness
requirement. Fed. R. App. P. 26(b) (the court may not
enlarge the time prescribed by law for petitioning for review
of an agency or board decision except as specifically
authorized by law);
, 931 F.2d 1544, 1546 (Fed. Cir. 1991)
(deadline for filing petition may not be waived; court
dismissed petition received nine days late); Monzo v. Dep't.
iati in., 735 F.2d 1335, 1336 (Fed.
Cir. 1984) (the 30-day period for petitioning for review is
statutory, mandatory, and jurisdictional).
Miller argues that the arbitrator did not apprise him
of the correct appellate rights and that this failure tolled the
time for him to file a petition for review.
An arbitrator applies “the same substantive rules as
the Board does in reviewing an agency disciplinary decision.”
Cornelius v. Nutt, 472 U.S. 648, 660 (1985); see 5 Von 8
7121(e)(1). However, “[a]n arbitrator is not bound by the
rules of the Board which relate to the Board’s own internal
procedures.” Bloomer v. Dept. of Health and Human Svcs.,
966 F.2d 1436, 1439 (Fed. Cir. 1992). In Wissman v. Social
Sec. Admin,, 848 F.2d 176, 178 (Fed. Cir. 1988), the court
stated that “the ‘substantive rules’ to which Cornelius
pertains are matters like the standard of review for
substantial evidence and the harmful error rule.” In
One = ; ects so Figs oem Domes pote —_ -
a Ee ee ee as ee OR hs MEL He EM awe
Appendix A
Bloomer, 966 F.2d at 1439, the court further elaborated that
an arbitrator was bound to apply a Board rule that was “a
condition of an appeal, not an internal procedure.”
In this instance, a Board rule, 5 C.F.R. § 1201.111.
requires that an administrative judge’s initial decision
contain, in pertinent part, a statement of further process
available, including a petition for judicial review. However,
that notice requirement does not operate as a condition of an
appeal. Therefore, the Board rule regarding notice of
appellate rights is not applicable to an arbitrator’s decision,
and the absence of notice of appellate rights in the
arbitrator's decision did not toll the time for Miller to file his
petition for review in the correct forum.
Miller’s petition for review was filed in this court more
than 30 days after he received the arbitrator's final order.
Therefore, his petition for review is untimely and must be
dismissed.
ra
Accordingly,
IT IS ORDERED THAT:
(1) — Miller’s petition for review is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
FEB -5 1998 /s/
Date Paul R. Michel
Circuit Judge
ce: Paul V. Jorgensen, Esq.
Dana E. Morris, Esq.
s12
4a
APPENDIX B -- ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT FILED JUNE 19, 1997
NOTE: Pursuant to Fed. Cir. R. 47.6, this order is not
citable as precedent. It is a public order.
United States Court of Appeals
for the Federal Circuit
No. 97-3260
HARRY CLINTON MILLER, III,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
ON MOTION
Before ARCHER, Chief Judge.
ORDER
Harry Clinton Miller, II] moves to remand this
petition for review to the arbitrator for the development of
the record. Miller states that the Department of the Air
Force does not oppose. We consider, sua sponte, whether
Miller should be ordered to show cause why his petition for
review should not be dismissed for lack of jurisdiction.
Sa
Appendix B
The Air Force removed Miller from his position as a
mechanic on January 26, 1996. Miller pursued grievance
procedures and, on October 22, 1996, the arbitrator denied
Miller’s grievance. Through his union, Miller filed exceptions
to the arbitrator's award with the Federal Labor Relations
Authority (FLRA). On February 25, 1997, the FLRA
dismissed the exceptions, noting that a challenge to an
arbitrator's decision concerning the removal of a federal
employee should have been filed with this court, not the
FLRA.
This court received Miller’s petition for review on
March 27, 1997, 156 days after the arbitrator's decision. A
petition for review must be filed within 30 days of receipt of
the arbitrator’s final decision. 5 U.S.C. § 7703(bj(1), §
7121(f). To be timely filed, the petition must be received by
this court, not mailed, on or before the date that the petition
is due. Pinat v , 931 F.2d
1544, 1546 (Fed. Cir. 1991) (petition is filed when received
by this court; court dismissed petition received nine days
late). iati in., 735
F.2d 1335, 1336 (Fed. Cir. 1984) (the 30-day period for
petitioning for review is statutory, mandatory, and
jurisdictional); Pinat, 931 F.2d at 1546 (deadline for filing
petition for review may not be waived). Further, this court
does not have jurisdiction to review orders of the FLRA.
Accordingly,
IT IS ORDERED THAT:
(1) Miller is directed to show cause, within 10
days of the date of filing of this order, why his petition for
review should not be dismissed for lack of jurisdiction.
6a
Appendix B
(2) The Air Force may respond within 10 days
thereafter.
(3) Miller’s motion to remand is held in abeyance
pending this court’s determination concerning jurisdiction.
6/19/97 /s/
Date Glenn L. Archer, Jr.
Chief Judge
ce: Paul V. Jorgensen, Esq.
Dana E. Morris, Esq.
David M. Cohen, Esq.
s8
7a
APPENDIX C -- ORDER DISMISSING
EXCEPTIONS ISSUED BY THE FEDERAL
LABOR RELATIONS AUTHORITY ON
FEBRUARY 26, 1997
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
—_—_
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 1709
(Union)
and
U. S. DEPARTMENT OF THE AIR FORCE
DOVER AIR FORCE BASE
DOVER, DELAWARE
(Agency)
0-AR-2902
_
ORDER DISMISSING EXCEPTIONS
February 26, 1997
The Union has filed exceptions to the award of
Arbitrator Daniel F. Brent in the above-captioned case. On
December 6, 1996, the Authority directed the Union to show
cause why its exceptions should not be dismissed because
they relate to the removal of the grievant from a position in
the Federal Service, a matter over which the Authority lacks
jurisdiction. The Union filed a timely response to the
Authority’s Order. The Agency filed an
8a
Appendix C
opposition to the Union’s exceptions and response. For the
reasons set out below, the Union’s exceptions must be
dismissed.
Section 7122(a) of the Federal Service Labor-
Management Relations Statute (the Statute) provides, in
pertinent part:
Either party to arbitration under [the Statute]
may file with the Authority an exception to
any arbitrator's award pursuant to the
arbitration (other than an award relating to a
matter described in section 7121(f) of [the
Statute}).
The matters described in section 7121(f) of the
Statute include serious adverse actions covered under 5
U.S.C. § 7512, such as removals. Review of arbitration
awards relating to such matters, like review of decisions of the
Merits Systems Protection Board, may be sought by appeal
to the U.S. Court of Appeals for the Federal Circuit in
accordance with 5 U.S.C. § 7703. The Authority is without
jurisdiction to review such awards. See, for example,
senosicnts Radetait G —_ Local 2094
1US.D rv. Affairs. Medical C
New York, New York, 51 FLRA 1612, 1614 (1996).
It is undisputed that the Arbitrator’s award in the
above-captioned case denied the grievance and found that the
removal of the grievant was for just and sufficient cause. The
removal of the grievant is a matter covered under 5 U.S.C. §
7512 and described in section 7121(f) of the Statute.
Accordingly, as the Authority is without jurisdiction to review
the Union's exceptions, the exceptions are
9a
Appendix C
dismissed. The Authority will not take further action on this
matter
For the Authority.
James H. Adams
Acting Director, Case Control
Office
10a
APPENDIX D -- ORDER TO SHOW CAUSE
ISSUED BY THE FEDERAL LABOR RELATIONS
AUTHORITY ON DECEMBER 6, 1996
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 1709
(Union)
and
U. S. DEPARTMENT OF THE AIR FORCE
DOVER AIR FORCE BASE
DOVER, DELAWARE
(Agency)
0-AR-2902
ORDER TO SHOW CAUSE
December 6, 1996
The Union has filed exceptions to the award of
Arbitrator Daniel F. Brent in the above-captioned case. The
Arbitrator’s award in this case relates to the removal of an
employee from a position in the Federal service. Therefore,
it appears that the Authority is without jurisdiction to review
the Agency’s exceptions.
Section 7122(a) of the Federal Service Labor-
Management Relations Statute (the Statute) provides, in
™ > SRY es Ain par eee : e 5 «
lla
Appendix D
pertinent part:
Either party to arbitration under [the Statute]
may file with the Authority an exception to
any arbitrator’s award pursuant to the
arbitration (other than an award relating to a
matter described in section 7121(f) of [the
Statute]).
The matters described in section 7121(f) of the
Statute include serious adverse actions covered under 5
U.S.C. § 7512, such as removals, or suspensions for more
than 14 days. Review of arbitration awards relating to such
matters, like review of decisions of the Merits Systems
Protection Board, may be obtained by filing an appeal with
the U.S. Court of Appeals for the Federal Circuit in
accordance with 5 U.S.C. § 7703. See, for example,
' :
V. ical r
New York, New York, 51 FLRA 1612, 1614 (1996).
The Union is ordered to show cause why its
exceptions should not be dismissed because the award relates
to a matter, the removal of an employee, over which the
Authority lacks jurisdiction. See, for example, American
F i Vv 117] and US.
Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution, El Reno, Oklahoma, 49 FLRA 1520
(1994).
In addition, the Authority’s Regulations provide that
an exception must be a “self-contained” document which
includes the “name and address of the arbitrator.” 5 C.F.R.
§ 2425.2(e). The Union’s exceptions do not comply with
12a
Appendix D
this requirement because the Arbitrator’s address was not
included.
Finally, the Authority’s Regulations require that “any
document or paper filed with the Authority . . . shall be
submitted . . . in an original and four (4) legible copies.” 5
C.F.R. § 2429.25. The Union’s exceptions do not comply
with this requirement because the Union failed to provide the
Authority with four complete copies of its exceptions, with all
attachments.
To summarize, the Union must file with the Authority
by December 20, 1996: (1) an original and four copies of its
response to the order to show cause; (2) an original and four
copies of notice of the Arbitrator’s address; and (3) four
complete copies of its exceptions, with all attachments.
The Union's response to this Order must include a
signed and dated statement of service that complies with the
Authority’s Regulations showing that a copy of the Union's
response has been served on all counsel of record or other
designated representatives. S C.F.R. §§ 2429.27(a) and
2429.27(c). The response should be directed to the Case
Control Office, Federal Labor Relations Authority, 607 14th
Street, NW., Room 415, Washington, D.C. 20424-0001.
Failure to comply with this Order by December 20,
1996, will result in dismissal of the Union’s exceptions.
For the Authority.
l3a
Appendix D
/S/
James H. Adams
Acting Director, Case Control
Office
l4a
APPENDIX E -- NOTICE OF DOCKETING
ISSUED BY THE FEDERAL LABOR RELATIONS
AUTHORITY ON DECEMBER 4, 1996
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 1709
(Union)
and
U. S. DEPARTMENT OF THE AIR FORCE
DOVER AIR FORCE BASE
DOVER, DELAWARE
(Agency)
0-AR-2902
NOTICE
December 4, 1996
The Union has filed exceptions dated November 18,
1996 to the award of the Arbitrator Daniel F. Brent. The
exceptions have been docketed as 0-AR-2902. Any
submissions or correspondence in connection with the
exceptions must refer to this docket number.
The parties are reminded of their obligation to serve
a copy of any documents filed with the Authority upon all
counsel of record or other designated representatives. 5
15a
Appendix E
C.F.R. § 2429.27(a). Service must be made by certified mail
or in person. 5 C.F.R. § 2429.27(b). A signed and dated
statement of service which shows that proper service has been
made must be submitted with all documents which are filed
with the Authority. 5 C.F.R. § 2429.27(c). It is the
responsibility of the parties to notify each other and the
Authority of any change in representative(s) and/or address.
Requests for extensions of time must be in writing and
received by the Authority not later than 5 days before the
established time limit for filing. The request must state the
position of the other party and must be served on the other
party. 5 C.F.R. § 2429.23(a).
Documents that are not filed in accordance with the
Authority’s regulations may be dismissed or may not be
considered by the Authority during its adjudication of the
exceptions.
Procedural questions regarding this case can be
directed to the Case Control Office, Federal Labor Relations
Authority, 607 14th Street, NW., Washington, D.C. 20424-
0001; FTS 482-6540, or (202) 482-6540.
James H. Adams
Acting Director, Case Control
Office
l6a
APPENDIX F -- AWARD OF ARBITRATOR
ISSUED OCTOBER 22, 1996
In the Matter of the Arbitration Between
——
DOVER AIR FORCE BASE
and
LOCAL 1709, AFGE
W F
The undersigned Arbitrator, having been designated
in accordance with the arbitration agreement entered into by
the above-named parties, and having been duly sworn, and
having duly heard the proofs and allegations of the parties,
AWARDS as follows:
Based on the evidence submitted, the removal action
of Harry Miller by management by letter dated January 25,
1996 was for just and sufficient cause. The instant grievance
is hereby denied.
/s/
October 22, 1996
Daniel F. Brent, Arbitrator
BRAN Sa Gb epirieh MM te sities 3 2
aac haasants
Fk ae ot gd
PASE ERS PT Rat tame aie Potter
eR ace aie Oa ec tt
17a
Appendix F
State of New Jersey
County of Mercer
On this 22nd day of October, 1996 before me
personally came and appeared Daniel F. Brent, to me known
and known to me to be the individual described in the
foregoing instrument, and he acknowledged to me that he
executed the same.
/s/
An Attorney at Law of the
State of New Jersey
18a
Appendix F
In the Matter of the Arbitration Between
DOVER AIR FORCE BASE
and
LOCAL 1709, AFGE
Hearings were held in the above-entitled matter on
July 23, August 1 and August 7, 1996 at Dover Air Force
Base, Delaware, before Daniel F. Brent, duly designated as
Arbitrator. Both parties attended these hearings and were
§: afforded full and equal opportunity to offer testimony under
oath, to cross-examine witnesses, and to present evidence and
arguments. Post-hearing briefs were submitted by both
parties, and the record was declared closed on September 15,
1996.
APPEARANCES
FOR THE AGENCY
Sylvio O. LeComte, Esq.
FOR THE UNION
Frank C. Russo, National Representative
Richard LaBrake, Local Representative
19a
Appendix F
ISSUE SUBMITTED
Was the removal action of Harry Miller by
management by letter dated January 25, 1996 for just and
sufficient cause? If not, what shall be the remedy?
NATURE OF THE CASE
The grievant, who was employed as a Aircraft
Pneudraulic Systems Mechanic. WG-8268-10, in the 436th
Logistic Group at Dover Air Force Base in Dover, Delaware,
was removed from Federal service on January 26, 1996
following an incident which occurred on August 8, 1995,
when the grievant was assigned to effectuate repairs on C5-A
Transport aircraft No. 87-0037. An aircraft crew had
reported problems with a hydraulic system on the aircraft’s
No. 2 engine. After the cause was diagnosed as a faulty
hydraulic pump filter pack, the grievant contacted the
dispatch office and requested assistance of another employee
in effectuating the repair. Airman Brian Poynter was
assigned to assist the grievant.
The grievant testified that he removed the faulty
hydraulic system engine filter pack assembly, but Airman
Poynter effectuated the replacement of the engine filter pack
assembly, including the reconnection of the hoses leading to
the hydraulic system pressure switch, because the grievant
had been asked by a mechanic working on the same aircraft's
No. | engine to assist in effectuating a repair on that engine.
According to the grievant, Airman Poynter approached
Engine No. | at approximately 3:30 p.m. and advised the
grievant that the replacement of the engine filter pack
assembly on No. 2 engine had been completed and that
Airman Poynter was leaving the flight line.
20a
Appendix F
Airman Poynter testified that he told the grievant that
the repair was not completed when advising the grievant that
fie was leaving the flight line to attend the Base Honor
Guard, of which Airman Poynter was a member. Both
Airman Poynter and the grievant testified that the grievant
told Airman Poynter to complete the appropriate
documentation as the mechanic who performed the repair.
Airman Poynter testified that the grievant told him to sign
the “completed by” box on the blank corrective action form,
AFTO Form 781A, and that the grievant indicated he would
sign the “inspected by” box and clear the “Red X” status of
this repair, which status disabled the aircraft from flight.
The grievant signed the inspection report before
leaving the flight line after the end of his shift. During the
subsequent shift, the next phase of testing the hydraulic
system, known as an “MOC,” was undertaken by swing shift
employees. When Engine No. 2 was started in order to
create pressure in the hydraulic system for test purposes, the
employee standing adjacent to Engine No. 2 noticed a fine
mist followed by a leak of hydraulic fluid and ordered the
engine shut down. Upon further examination, it was
determined that two hydraulic hoses had not properly been
reattached to the pressure switch, notwithstanding the
grievant's certification that he had inspected the system.
After further investigation, the Agency determined
that the grievant had failed to conduct a proper inspection
before certifying the repair as completed. On September 29,
1995, the Agency proposed that the grievant be removed
from Federal service for negligence by failure to follow
technical data on aircraft repair (second offense) and for
misrepresentation of maintenance performed on an aircraft,
whereupon the instant grievance was filed.
2la
Appendix F
According to the Union, the Agency did not properly
discharge the grievant because the evidence does not support
a conclusion that it was the grievant who breached a duty
when he inspected the work performed by Airman Poynter.
The Union also asserted that the offenses charged were not
the offenses addressed by the Agency, that the penalty of
removal was not justified for the offenses charged, and that
the grievant was treated more harshly than other mechanics
who had committed aircraft maintenance errors at Dover Air
Force Base in the past.
The Agency justified its decision to remove the
grievant from Federal service, contending that by signing a
document certifying that he had inspected the satisfactory
completion of the hydraulic engine filter pack assembly
replacement, the grievant breached a duty of care and
exhibited such patent negligence that the Agency could no
longer rely on his integrity as an Aircraft Pneudraulic Systems
Mechanic responsible for maintaining critical systems on C5-
A aircraft. The Agency asserted that the grievant either did
not inspect the system before signing the “inspected by” box
on the Form 781A or that his inspection of the repair was so
cursory that he violated the applicable standard of care
necessary to ascertain that the work had been properly
completed.
According to the Agency, the grievant should have
observed that the hydraulic hoses from the engine filter pack
assembly had not been reconnected to the hydraulic pressure
switch before he removed the “Red X” status associated with
a defective hydraulic system. The Agency further asserted
that the grievant’s prior work and disciplinary history
demonstrated not only that this incident was neither isolated
nor atypical, but also that the grievant was not a suitable
22a
Appendix F
candidate for additional rehabilitation.
The Union asserted that the grievant reasonably relied
on Airman Poynter's declaration that he had completed the
repair and that the grievant behaved reasonably when he
conducted an inspection of the filter pack without physically
checking that the hydraulic hoses were fully connected to the
pressure switch located several feet above the filter pack that
had been replaced. According to the grievant, these hoses
were obscured behind an upper sheet metal panel and could
be viewed only from the side.
The parties were unable to resolve their dispute within
the grievance procedure, and the matter was brought to
arbitration.
DISCUSSION
Few tasks are more sensitive to unerring quality
control than the maintenance of aircraft because defects
cannot readily be rectified in mid-air. Crews, passengers, and
innocent bystanders rely on the integrity and competence of
aircraft mechanics to apply their skills meticulously and
thoroughly in order to maximize the safety of all who may be
hurt by negligence. In furtherance of this public policy,
detailed operational and maintenance protocols have been
developed, including checks and cross-checks designed to
assure that no detail which could adversely affect the safety
and airworthiness of any aircraft escapes the scrutiny of those
charged with responsibility for aircraft maintenance.
Disregard for or deviation from these maintenance protocols,
known in the Air Force as “technical orders,” constitutes
compelling evidence of an unacceptable inattentiveness and
lack of professional responsibility which no operator of
23a
Appendix F
aircraft can reasonably be expected to condone. While no
human endeavor can be executed to a standard of absolute
perfection, substantial discipline may be imposed on
maintenance personnel who knowingly thwart the
overlapping safety features of the aircraft maintenance
system, regardless of whether actual harm to personnel or
equipment directly results from such negligence.
Palpably intentional violation of such standards
justifies immediate removal from Federal service. To hold
otherwise would jeopardize the integrity of an aircraft
maintenance system which must rely on the combined
individual efforts of a team comprised of many skilled
craftsmen, inspectors, and supervisors. The huge, complex
maintenance mission of the United States Air Force is
predicated on thorough and careful attention to detail at
every level of the maintenance operation.
Of all the facts adduced by testimony and exhibits in
the instant case, whether disputed or undisputed, the
paramount issue is whether the grievant should have
discovered that the hoses running from the hydraulic pump
filter pack to the pressure switch had not been connected.
Because the position of these hoses was materially altered
when the engine was motored, thus applying three thousand
pounds per square inch of pressure to the hoses and causing
them to move from whatever position they were in when the
grievant inspected the system, it is impossible to determine
with certainty whether the hoses appeared upon visual
inspection to have been affixed to the pressure switch in a
proper manner.
The grievant testified without refutation that he could
view the couplings between the hydraulic hoses and
24a
Appendix F
the pressure switch only tangentially because an upper sheet
metal panel obscured his direct view. This panel is affixed to
the air frame by many screws. Consequently, it was
impractical for the grievant to remove the panel for direct
observation.
The grievant testified that the lighting conditions on
the flight line in a summer mid-afternoon on August 8, 1995
provided ample illumination for him to view the details of the
aircraft engine, including the hydraulic hoses, from his
position on the maintenance stand adjacent to Engine No. 2.
The Arbitrator’s physical inspection of a similar engine
supports the Agency’s contention that the grievant could view
the pressure switch connection to the hoses even with the
metal panel in place.
The Agency established persuasively that a fine mist
was emitted from the loose couplings to the hydraulic
pressure switch when hydraulic pressure was applied to the
system as the engine was motored. The mist was followed
shortly by spewed hydraulic fluid in and about the engine
until the motor was shut down. Fortunately, the employee
who was standing adjacent to the engine to observe the
performance of the repaired hydraulic system was not
injured. Nevertheless, it is self-evident that the couplings
between the hydraulic hoses and the pressure switch could
not have been fully tightened. Otherwise, the hoses would
not have become completely disconnected, as they were
ultimately observed after the motor was shut down.
In order for the hoses to have become completely
disengaged so quickly, it is much more probable than not that
the hoses were either completely disconnected or only
partially screwed down, a condition which should have been
25a
Appendix F
observed during a thorough and careful visual inspection.
The grievant’s assertion that a quick visual inspection of the
area surrounding the filter pack and a physical jiggling of the
filter pack assembly to be sure that it is bolted tightly to the
air frame was the only inspection required by applicable
technical orders under the circumstances, if true, presupposes
that a proper visual inspection will include close scrutiny of
the points at which hoses or tubes which have been totally
removed during the replacement of a filter pack have been
reattached. Such a careful visual examination apparently was
not done by the grievant before he certified his inspection.
It is possible that the grievant misunderstood Airman
Poynter's declaration that he had to leave at about 3:30 p.m.
Perhaps by using such words as “I’m done,” Airman Poynter
unintentionally misled the grievant into concluding that the
repair had been completed. Whether or not Airman Poynter
actually misled the grievant by his declaration that he was
finished for the day, which the grievant may have
misinterpreted to mean that the repair had been completed,
is immaterial.
Whether Airman Poynter negligently failed to connect
or properly to tighten the hydraulic hoses running from the
filter pack to the pressure switch or, in the alternative, had
not yet undertaken that last step in the filter pack
replacement process, Airman Poynter undoubtedly was remiss
for signing off the blank on Form 781 indicating that the
discrepancy involving the filter pack had been corrected.
Even if Airman Poynter was merely negligent and forgot to
reconnect the hoses, such a mistake by the person signing off
the “corrected by” box is less serious than an omission by the
person who certifies that the work has been inspected and has
properly been completed.
26a
Appendix F
Assuming that the grievant correctly asserts that he
was under no obligation to ask Airman Poynter whether the
proper torque values had been applied to the fittings or to
test the torque values himself, Technical Order 1C-5a-2-3
(Joint Exhibit No. 10) explicitly cautions to employee to
“Ensure that hydraulic lines are reconnected using proper
torque values in accordance with the paragraph titled
Hydraulic Tube Installation in Section 1 of this publication.”
An inspector must ascertain using reasonable diligence that
the elements of the repair have properly been carried out.
Assuming that the Technical Order was properly
interpreted by the grievant, the inescapable conclusion is that
there is an obligation at least to make a meaningful visual
inspection, if not a tactile, physical inspection by hand,
focusing on where the hoses connect to the hydraulic pressure
switch and to the filter pack to ascertain that the couplings
are properly seated.
The consequences of permitting an aircraft to fly with
a hydraulic hose that could come loose in mid-flight are
potentially catastrophic. Therefore, the Agency is entitled to
impose severe discipline upon an employee who fails to
observe the commonly applied standards of inspection or who
deviates from the explicit terms of a technical order for the
repair of a critical system. Even if the technical order in
question did not explicitly dictate that the grievant check the
torque values of the fittings by which the hydraulic hoses
were connected to the pressure switch, he must bear the
burden of failing to ascertain either that the hoses were not
connected at all, were only hand tightened, or had been only
partially connected.
Assuming, for argument’s sake, that the grievant's
27a
Appendix F
recollection of his conversation with Airman Poynter is
accurate and that Airman Poynter changed his version of the
event between the time that he gave his statement on August
9, 1995 and his testimony at the arbitration hearing, Airman
Poynter's testimony is not dispositive. The standard of care
which must be applied by a person authorized to remove a
“Red X,” a symbol that has placed an aircraft out of service,
is very high. Regardless of the degree of whether Airman
Poynter should have completed the repair or actually told the
grievant that he had completed the repair, the grievant's role
as the inspector who certified the work as completed in
compliance with applicable technical orders and removed the
Red X cannot be ignored.
No system of aircraft maintenance, whether military
or civilian, can assure flight safety if persons charged with
inspecting the work of others do not adhere to the highest
standards. Given the grievant’s testimony that he had spent
an hour to an hour-and-a-half assisting Airman Rigg in his
attempt to locate a lost bolt that had fallen in Engine No. 1,
thereby creating an additional “Red X” condition, and the
testimony of both Airman Rigg and the grievant that the
grievant had overstayed the end of his shift by almost an
hour without authorization, the credibility of the grievant's
assertion that he thoroughly and carefully inspected the
engine filter pack assembly, hoses and fittings before he
signed the “Inspected by” box on form 781 and left the flight
line on August 8, 1995 is substantially eroded. The grievant
may have sincerely thought that he was making an adequate
inspection, but the very fact that the hoses popped loose
offers undisputable evidence that a condition that he could
have and should have observed with a careful visual
inspection persisted because of his failure to adhere to
appropriate professional standards. Consequently, the
28a
Appendix F
Agency was justified in imposing severe discipline for this
breach.
The Union has asserted that the penalty of removal
was excessive. The Agency defends the penalty imposed as
appropriate in view of the grievant’s prior history of deviation
from, or failure to use, applicable technical orders. It was
undisputed that the grievant is a highly trained journeyman
Aircraft Pneudraulic Systems Mechanic whose skills are first
rate and whose devotion to his chosen field has been amply
demonstrated on many occasions. The record contains
multiple citations and awards conferred upon the grievant for
valuable suggestions designed to improve the efficiency of
aircraft maintenance at Dover Air Force Base. These
accolades notwithstanding, the lack of consistency in the
grievant’s job performance substantially impaired his
employer's confidence in his reliability and dependability
when performing the critical functions of his profession.
Other job classifications or occupations may provide
greater margin for error. If the August 8, 1995 incident were
the first instance in which the grievant deviated from the
customary and usual mode of repair or inspection, then
removal from service might not be justified. However, the
grievant's work record reveals that the instant case is not the
first time that he has been admonished for deviation from, or
failure meticulously to observe, applicable technical orders.
The Union argued that the Agency failed to prove the
offense for which the grievant was removed from Federal
service, more particularly No. 16 in Joint Exhibit No. 2,
“deliberate misrepresentation; falsification, exaggeration or
concealment of a material fact in connection with any official
document....”. The commanding officer of the 346th Wing
29a
Appendix F
testified that, upon further reflection, violation No. 24,
careless workmanship or negligence”, would be more
appropriate. The latter offense can reasonably be construed
as a lesser included offense. Consequently, the discipline
imposed cannot be invalidated solely on the basis of selecting
an offense that is too severe, as urged by the Union.
There is no evidence that the grievant intentionally
disregarded a known defect in the engine filter pack assembly
system or that he intentionally falsified a document, knowing
that the hoses were not properly affixed or that the filter pack
component had not properly been replaced. The evidence
does not support a conclusion that the grievant knowingly
falsified a document or that he failed to make any inspection
whatsoever before certifying that he had inspected and
removing the “Red X” discrepancy, conduct which would
mandate summary discharge for a first offense.
Consequently, the Agency has not proved the essential
elements of violation No. 16.
The Agency established clearly and convincingly that
the defect in the hydraulic system caused by the mechanic’s
failure to affix or properly to tighten the hydraulic hoses
where they entered the hydraulic pressure switch must have
existed at the time the grievant made his inspection. The
evidence also strongly suggests that a thorough examination
of the system would have revealed the improper hose
connections and that the grievant failed to satisfy the
applicable standard of care in conducting this inspection.
The Agency is entitled to impose substantial
discipline, up to and including removal from service for this
lapse. To hold otherwise would substantially impede the
Agency's ability to maintain the integrity of its aircraft and
30a
Appendix F
to assure the safety of its crews. The penalty may be harsh,
but the risks caused by indifferent inspection of patent
defects are enormous.
The Union has cited instances of other employees
who were not removed despite negligence in maintenance.
An affirmative defense of disparate treatment requires that
similarly situated employees be treated differently. The cases
cited by the Union can be distinguished on several grounds.
First, there is no evidence that the other employees also had
prior histories of discipline for deviation from technical
orders. Second, the grievant was acting as an inspector. His
function was to detect the errors of another employee. Third,
the instant situation involves removing a Red X status, which
grounds an aircraft and should be undertaken only after
careful inspection of the repair.
The grievant’s failure to trace the hoses and examine
the couplings carefully was a small oversight in terms of time
saved, but the adverse consequences of this lack of due care
were potentially quite dangerous. The Agency need not
ignore such a breach of the grievant’s duty to apply his
expertise carefully when removing a Red X.
By delegating to an inexperienced airman the repair
that had been assigned to the grievant in order to offer
assistance to a colleague repairing the No. | engine, the
grievant exhibited poor judgment and further demonstrated
his inability to grasp management’s repeated admonitions
that he remain with his assigned tasks. Moreover, the
grievant should have known that a meticulously thorough
inspection was necessary because the grievant had delegated
his assignment to the mechanic who had been sent to assist
him. The grievant's negligent inspection of a critical aircraft
3la
Appendix F
component was compounded by his inability to remain with
his assigned task or, in the alternative, to ascertain that his
assistant had properly performed all aspects of the technical
order governing the repair.
The grievant had been repeatedly admonished to
conform with the standards applicable to completing
assignments. His persistent unwillingness or inability to
conform to these standards constituted sufficient cause for
the Agency to conclude that additional discipline or
rehabilitation would be ineffective and that removal was
warranted for his offense. Management could have opted for
a lengthy suspension instead of removal, but management did
not abuse its discretion or exceed the Guide to Disciplinary
Actions in deciding to remove the grievant from Federal
service.
Therefore, based on the evidence submitted, the
removal action of Harry Miller by management by letter
dated January 25, 1996 was for just and sufficient cause. The
instant grievance is hereby denied.
October 22, 1996 Daniel F. Brent, Arbitrator
32a
APPENDIX G -- MOTION TO REMAND FILED
BY MILLER IN THE UNITED STATES COURT
OF APPEALS FOR THE FEDERAL CIRCUIT
United States Court of Appeals for the Federal
Circuit
MILLER V AIR FORCE, 97-3260
MOTION TO REMAND
Petitioner Harry Clinton Miller III, by his attorney,
Paul Victor Jorgensen, moves this Honorable Court to
remand this matter with instructions to develop a record
capable of being reviewed on appeal, including a transcript of
the arbitration testimony and all other evidence considered
by the arbitrator in arbitrating an award. In support of this
Motion, the Petitioner says:
Grounds for the Motion and Relief Sought
1) This is an appeal of an arbitrator’s award upholding
the adverse action of the Respondent Department of the Air
Force removing the Petitioner, an aircraft mechanic, based on
charges that he had failed to follow technical data and
misrepresented facts when he had inspected and verified an
aircraft engine repair. The Petitioner’s union had denied
these charges, contending, inter alia, that the evidence did not
support the charges, that he was not provided proper notice
of the charges, and that the penalty of removal was not
justified. [See Ex 1, Arbitrator’s Award (referred to as “AA”)
p 7)
33a
Appendix G
2) Upon docketing this appeal, the Clerk of the Court
instructed the arbitrator “to submit to the court and serve on
the parties on or before May 14, 1997, a certified list of all
documents, transcripts of testimony, exhibits, and other
materials comprising the record, adequately describing each,
pertaining to the arbitration.” [Ex 2, letter from Clerk to
Arbitrator dated April 4, 1997]
3) The Petitioner’s counsel, who did not represent the
Petitioner in the arbitration, wrote to the arbitrator,
requesting him to “make available for my inspection and
copying the original papers, transcripts and exhibits.” [Ex 3,
letter from Counsel to Arbitrator dated April 25, 1997]
Counsel also requested the arbitrator to advise him of steps
for obtaining a transcript if the proceedings were not
transcribed. [Ex 3]
4) The arbitrator never responded directly to the
Clerk of the Court, nor provided the certified list or
arbitration record requested by the Clerk. In response to the
letter from the Petitioner's counsel, the arbitrator mailed a
letter listing the exhibits proffered by the parties during the
arbitration, and stating that no transcript or other official
record of the proceedings was made. [Ex 4, letter from
Arbitrator to Counsel dated May 2, 1997]
5) An arbitration record is indispensable to the proper
adjudication of this appeal. This appeal is governed by the
same standards of judicial review that would govern an
appeal of a similar MSPB ruling. 5 U.S.C. § 7121(f). The
substantive principles governing an MSPB adjudication of a
removal action, including the parties’ respective burdens and
affirmative defenses set out at 5 C.F.R. § 1201.56, were
applicable to the arbitration. 5 U.S.C. § 7121(e)(2);
Cornielius v. Nutt, 472 U.S. 648, 660 (1985) (“Congress
clearly intended that an arbitrator would apply the same
substantive rules as the Board does in reviewing an agency
34a
Appendix G
disciplinary decision.”). Thus, the Respondent had the
burden of proving that its decision to remove the Petitioner
was supported by a preponderance of the evidence. 5 U.S.C.
§ 7701 (c)(1)(B); Devine v. Nutt, 718 F.2d 1048, 1054 (Fed.
Cir., 1983), reversed on other grounds, Cornelius v. Nutt, supra,
472 U.S. 648. With regard to any facts challenged in this
appeal, this Court must decide from the record as a whole
both whether substantial evidence supports each finding of
the arbitrator, and whether the arbitrator’s decision that the
Respondent had satisfied its burden by a preponderance of
the evidence was reasonable. See Naekel v. Dept. of Transp.,
782 F.2d 975, 978 (Fed. Cir., 1986). The omission of a
transcript of the testimony considered in the proceeding
below is grounds for reversal when its absence creates harmful
error. Cf. Girani v. FAA, 924 F.2d 237, 240, fn. 5 (Fed. Cir.,
1991); Harp v. Dept. Of Army, 791 F.2d 161, (failure to
provide transcript is not harmful error where the record is
sufficient for a full consideration of the issues raised in the
appeal).
6) The particular facts of this case require a complete
arbitration record and transcription of the testimony in order
for this Court to fully consider the issues that the Petitioner
intends to raise. The arbitrator’s decision shows that his
findings rested almost wholly on the resolution of complex
and conflicting expert testimony. To decide this case, the
arbitrator had to ascertain the criteria and standards that an
aircraft mechanic acting as an inspector of another
mechanic’s work must employ to determine whether the
supervised mechanic had properly applied correct torque
values when he tightened certain hydraulic hose couplings.
[AA 10-12] In ruling against the Petitioner, the arbitrator
found that the loose condition of the couplings “should have
been observed during a thorough and careful visual
inspection” [AA p 12]; that, because the hoses had separated
during the operational testing of the engine, “(s)uch a careful
visual examination apparently was not done by the grievant
35a
Appendix G
before he certified his inspection.” [AA p 12]; and that, even
if the pertinent technical instructions “did not explicitly
dictate that the grievant check the torque values. . . he must
bear the burden of failing to ascertain either that the hoses
were not connected at all, were only hand tightened, or had
been only partially connected.” [AA 14-15]. Although the
arbitrator found that “(I)t was undisputed that the grievant
is a highly trained journeyman Aircraft Pneudralic Systems
Mechanic whose skills are first rate and whose devotion to his
chosen field has been amply demonstrated on many
occasions,” he concluded that the penalty of removal was
justified because the Petitioner's work record allegedly
revealed that he had been previously admonished for
deviating from technical orders. [AA 15-17]
7) As his primary argument to this Court, the
Petitioner will contend that the arbitrator's findings that the
Petitioner had failed to perform properly his inspection were
unsupported by substantial evidence, and that the arbitrator's
determination that the Respondent had met its burden of
proof was unreasonable. See Naekel v. Dept. of Transp., supra,
782 F.2d at 978. In light of the technical nature of the
evidence, the resolution of such an argument requires the
provision of a complete transcript and arbitration record.
The transcript is also indispensable for reviewing the
Arbitrator’s determination to uphold the Respondent’s
determination to remove the Petitioner, rather than choose
a lesser penalty. The Petitioner contends that a transcript
would show that the alleged “prior discipline” relied on by
the arbitrator to support the Petitioner’s removal had been
rescinded and removed from his work record; that the only
evidence of this alleged incident was an improperly admitted
investigative report that had not been disclosed to the
Petitioner or his representative prior to his removal; and that
the arbitrator had refused to admit testimony from the
Petitioner concerning this alleged event based on lack of
relevancy.
36a
Appendix G
Movant's Statement of Consent or Opposition to the
Motion
8) On May 30, 1997, the undersigned Petitioner's
counsel discussed this motion and the relief sought by
telephone with Ronald G. Morgan, Esq., principal attorney
for the Department of the Air Force. Mr. Morgan stated that
the Respondent did not oppose the Motion, and did not
expect to file a response.
Respectfully Submitted,
/s/
Paul Victor Jorgensen
215 West Main Street
Post Office Box 850
Middletown, MD 21769
(301) 293-6822
Attorney for Petitioner
Harry Clinton Miller III
37a
APPENDIX H -- PETITION FOR REVIEW FILED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
HARRY CLINTON MILLER III
Petitioner
V.
UNITED STATES DEPARTMENT
OF THE AIR FORCE
Nee eee eee
Respondent
PETITION FOR REVIEW
Petitioner Harry Clinton Miller III hereby petitions
the Court for review of the award of the arbitrator affirming
the Petitioner's removal from his employment by the United
States Department of the Air Force at the Dover Air Force
Base, Dover, Delaware. Said award became final on February
26, 1997, when the Federal Labor Relations Authority issued
an order dismissing exceptions to the award filed by the
American Federation of Government Employees, Local 1709.
The Petitioner received notice of the aforesaid final order on
March 10, 1997.
38a
Appendix H
Respectfully Submitted,
/s/
Paul Victor jorgensen
215 West Main Street
Post Office Box 850
Middletown, MD 21769
(301) 293-6822
Attorney for Petitioner
Harry Clinton Miller III
39a
APPENDIX I -- UNION’S RESPONSE TO
ORDER TO SHOW CAUSE ISSUED BY THE
FEDERAL LABOR RELATIONS AUTHORITY
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 1709 (Union)
and
U. S. DEPARTMENT OF THE AIR FORCE
DOVER AIR FORCE BASE
DOVER, DELAWARE
(Agency)
0-AR-2902
Cause for Jurisdiction
December 18, 1996
The Union’s show of cause to support why its
exceptions in the above referenced docket should not be
dismissed is as follows:
In addition to the former exceptions filed November 18,
1996, the Union takes exception to the arbitrator ignoring
the issue of an Unfair Labor Practice (ULP). The union
raised the issue that management failed to disclose or furnish
an investigative report introduced as joint exhibit five (J-5) at
the hearing. The union alleged a violation of 5 USC 7114
(b) of the Statute. The report was used by management in its
decision to remove the grievant and was made known to the
Union after the grievant was removed. This issue raised
40a
Appendix I
before the arbitrator was an Unfair Labor Practice, however
the Arbitrator ignored this issue in his award. The union
asserts that the claimed violation of the Statute, included in
the grievance, is an issue to be decided by the Arbitrator.
The ULP charge involves the same issue that the arbitrator
erroneously concluded that the grievant had prior offense’s.
This is so because the Arbitrator relied on the investigative
report to conclude that it was not the “first instance in which
the grievant deviated from the customary and usual mode of
repair or inspection.” The investigative report in paragraph
3 . states the following: ©
“The abilities of Mr. Miller as a hydraulic
mechanic were never questioned during my
interviews. Also, this incident in itself would
not normally warrant separation from service.
However, when taken in conjunction with his
past performance, it causes concern.”
See the enclosed document marked J-5 dated 16 November
1995, Memorandum for 436 LG/CC, Subject: Investigation
of Proposal to Separate.
The deciding official relied on this report in his decision to
separate the grievant from employment. See paragraph 2.b.
of enclosed document marked J-6 dated 25 January 1996,
Memorandum for Mr. Harry C. Miller III, Subject: Decision
on Proposal to Separate. :
The Union first learned about the investigative report after
reading the decision letter on January 25, 1996 and requested
a copy of the investigative report by letter dated 7 February
1996. The grievant was separated on January 26, 1996.
Management provided a copy of the report by
4la
Appendix I
Memorandum dated Feburary 12, 1996. Both documents are
enclosed.
The Union’s Post Hearing Brief included enclosure’s of
request for data by the Union to show a violation of the
Statute. However, the Arbitrator ignored this issue in his
award. See enclosed Memorandum for Mr. Murray dated 29
September 1995 and Union letter to Col. Cryer dated 2
October 1995.
The Union submits the Authority has, unlike the courts,
jurisdiction to resolve all of the Union's exceptions, including
the claim related to the alleged unfair labor charge under the
Statute.
The Arbitrator’s address and phone number is as follows:
Daniel F. Brent, Arbitrator
239 Shady Brook lane
Princeton, NJ 08540
(609) 683-0033
Fax (609) 924-6171
/s/
Frank C. Russo
Representative for the Union
42a
APPENDIX J -- EXCERPT FROM UNION’S
EXCEPTION TO THE AWARD OF
ARBITRATOR FILED WITH THE FEDERAL
LABOR RELATIONS AUTHORITY ON
NOVEMBER 18, 1996
November 18, 1996
FMCS Case No. 96-10732
Union’s Exception to the Award:
In the matter of the Arbitration between AFGE Local 1709
and Dover Air force Base the union takes exception to the
award of arbitrator Daniel F. Brent. The Union asserts that
the arbitrator erroneously concluded that the grievant was
charged with a second offense when in fact this was the
grievant's first offense. But for this fact the union asserts the
arbitrator would have reached a different result as alluded to
by the arbitrator'sstatement on page 15 of the award.
The Agency did not present any record of prior disciplinary
action for deviation from technical orders to support a charge
of second offense. The Agency did not present any evidence
of a prior history of discipline for deviation from technical
orders. The Agency did not present any work record as
evidence for a second offense. The Agency did not refute the
Union’s assertion, at the hearing, of a charge of first offense.
The following statements are taken from the award:
On page 5 of the arbitrators award he alludes to the agency
proposing removal based on a second offense.
On page 15 the arbitrator stated:
“If the August 8, 1995 incident were the first instance
in which the grievant deviated from the customary
43a
Appendix ]
and usual mode of repair or inspection, then removal from
service might not be justified”.
On page 17 the arbitrator infers that the grievant had a prior
history of discipline for deviation from technical orders.
44a
APPENDIX K -- EXCERPTS FROM LABOR-
MANAGEMENT CONTRACT BETWEEN
DOVER AIR FORCE BASE AND LOCAL 1709,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
LABOR-MANAGEMENT CONTRACT
between
DOVER AIR FORCE BASE, DELAWARE .
LOCAL 1709, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
AMERICAN FEDERATION
aee Re? &@ 2
GOVERNMENT LOFIOVERS
tee nee nese
~ sy
Effective Date: 15 June 1995
45a
Appendix K
ARTICLE 23
ARBITRATION
SECTION 1. Under the provisions set forth in this
agreement, arbitration may be extended to those matters
acceptable as grievances under the provisions of Article 22 of
this agreement.
SECTION 2. Arbitration may only be invoked by the Union
or the Employer. Approval by the employee(s) affected by,
or involved in, the grievance is not required before arbitration
is invoked.
SECTION 3. An arbitrator shall not change, modify, alter,
delete, or add to the provisions of this agreement; such right
is the prerogative of the contracting parties only.
SECTION 4. A Union request for arbitration must be
submitted in writing to the Chief, Work Force Effectiveness
(DPCE) within 20 calendar days after receipt of the decision
subject to referral to arbitration. The request for arbitration
must be signed by the Union President or designee. An
Employer request for arbitration must be submitted in
writing to the Union within 20 calendar days after receipt of
the decision subject to referral to arbitration.
SECTION 5. On arbitrable matters, within 10 calendar days
from the date either party receives an arbitration request,
representatives of the Union and the Employer shall meet to
discuss the need for arbitration. If arbitration is determined
necessary by either party, the Union and the Employer shall
endeavor to agree on selection of an arbitrator and on a joint
submission of the issues subject to arbitration. If agreement
on an arbitrator cannot be reached,
46a
Appendix K
the parties shall jointly submit a request that the Federal
Mediation and Conciliation Service (FMCS) provide a list of
seven (7) impartial persons qualified to act as arbitrators, in
accordance with the regulations of the FMCS. The request
will be accompanied by a joint submission of the issues to be
resolved.
SECTION 6. The parties shaii meet within five (5) calendar
days of the receipt of an appropriate list. The Employer and
the Union will alternately strike one arbitrator’s name from
the list and shall then repeat this procedure. The remaining
name shall be the duly selected arbitrator. The party to strike
first will be decided by the flip of a coin.
A. In the event either party refuses to participate in the
selection of an arbitrator, the other party may unilaterally
select one (1) of the listed arbitrators to hear the issue(s).
If either party fails to appear at the arbitration
proceedings the arbitrator may hear and rule on the
evidence presented by the attending party.
B. If for any reason, either the Union o1 the Employer
refuses to participate in the selection of an arbitrator, the
grievance(s) shall be deemed to have been resolved in
favor of the other party.
SECTION 7. The arbitrator's fee and all expenses will be
incurred by the party that was not granted the award.
SECTION 8. The arbitration hearing shall be held during
the regular dayshift hours of the basic workweek of Monday
through Friday, and the employee's representative, employee
witnesses and the employee appellant(s) who are in a pay
status shall be excused from duty without charge to annual
47a
Appendix K
leave or loss of pay while participating in the arbitration
hearing, the parties shall meet in an attempt to agree on
stipulations of fact and joint submission of pertinent case file.
SECTION 9. The arbitrator will be requested to render
his/her award within 30 calendar days after the conclusion of
the hearing. This decision will be in writing and will include
a statement of the basis for the decision and shall be supplied
concurrently to the Employer and the Union.
SECTION 10. The award of the arbitrator is binding on
both parties. Either party may file an exception to
arbitrator's award with the Federal Labor Relations Authority
(FLRA) pursuant to Title VII and any applicable FLRA
regulations.
SECTION 11. The time limits specified in this article may
be extended by mutual agreement between the Union and the
Employer.
SECTION 12. Matters which may otherwise be grievable or
arbitrable may not be processed under this article if the
matter is pending before a Court or the employee is under
arrest, indictment or investigation. The arbitration process
will be held in abeyance until all pending court actions are
complete.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.