Escolar Documentos
Profissional Documentos
Cultura Documentos
Katrina J. Stanfill
Marine Corps Logistics Base
Civilian Human Resources Office SE
814 Radford Boulevard, Suite 20319
Albany, GA 31704-0319
employment, as the decision made to not extend was for mission reasons alone.
Agency Brief @ 2.
III.C. The Agencys View of the Applicable Law
5 CFR 316.301(a) provides in pertinent part:
An agency may make a term appointment for a period of more
than 1 year but not more than 4 years to positions where the need for an
employee's services is not permanent. Reasons for making a term
appointment include, but are not limited to: project work, extraordinary
workload, scheduled abolishment, reorganization, contracting out of the
function, uncertainty of future funding, or the need to maintain permanent
positions for placement of employees who would otherwise be displaced
from other parts of the organization. Agencies may extend appointments
made for more than 1 year but less than 4 years up to the 4-year limit in
increments determined by the agency. JX 13.
Agency Brief @ 2-3.
IV. Testimony of the Witnesses
IV.A. Union Witnesses
IV.A.1. J. L. D., Union President
He signed the subject grievance, which states in pertinent part:
Shortly after receiving 2nd step grievance response for grievance filed on
07/22/2014 grievant was informed that his current term position would not
be renewed past 03/09/2015. The timing of this notice (right after receiving
grievance response and six months prior to renewal date) suggested
retaliation for having filed the 07/2014 grievance. JX 6.
The president himself participated in the grievance procedure. He alleged violation
of CBA Article 3, Governing Laws and Regulations, and Article 6, Section 2,
which prohibits retaliation for filing a grievance.
7
The grievance was denied at the first step, in a letter from the I & E Director
to Grievant, dated February 12, 2015, which was given to the president for delivery
and which explained in paragraph 3.a:
On 11 March 2013, you were selected for a Term appointment NTE 11
March 2014 . As a condition of your Term Appointment, you were made
aware that this appointment would be for a specific period not to exceed 1
year and 1 day, which could be extended up to 4 years. Fortunately, on 9
March 2014, your term position was extended NTE 9 March 201[5] . On
6 November 2014, based on uncertainty of future funding, reorganization,
and projected workload, you, as well as another term employee from your
department, received letters notifying you that your term employment would
be expiring on the applicable expiration dates depending on your date of
hire. JX 5.
The grievance was amended and denied at the second step by the Base
Executive Director, who in a letter dated March 17, 2015, which also was given to
the president for delivery, stated that over the last several years, our nation has
faced financial change and the Department of Defense was not sheltered from that.
Unfortunately, budget cuts have been made, which has [a]ffected Agencies
personnel. JX 3, paragraph 3.b. The president admitted that he did not know how
Agency funding works.
In an email to the Executive Director, dated July 23, 2015, the Union
president inquired as to why Grievant could not be treated the same as term
employee V. M., who was moved from the CRS Shop to another location. The
president noted that V. M. is considered a HVAC technician and that Grievant
11
The notice was provided to you to give you adequate time to properly plan,
in order to take care of your personal responsibilities and obligations, and to
possibly gain other employment. These decisions are never easy for
management, but they are decisions management must make at times in
order to be financially accou[n]table.
c. In regards to your term position, there are no contractors being hired
by the Marine Corps Logistics Base to replace it.
4. After further discussing this case with your chain of command and, based
on the above information and a detailed review of the circumstances, I must
respectfully deny your grievance. Please know that your chain of command
and I explored all possible options to extend your employment, to no avail,
and I speak for all of us in genuinely wishing you the best in your future
endeavors.
The Executive Director testified that there was a decline in work at the
Central Repair Services Shop. When the workload declines, employment follows.
Term employees went away because of the decline in work. Although he was
informed about the two term employees who were given notice on November 6,
2014, the Director made the decision to let them go.
V. Analysis
V.A. Limitations on an Arbitrators Authority
Looming large over an arbitrators authority in a federal case are the
management rights provisions of 5 USC 7106(a) that provide in pertinent part:
[N]othing in this chapter shall affect the authority of any management
official of any agency
(1) to determine the mission, budget, organization, number of employees,
of the agency; and
13
show that (1) Grievant was engaged in protected activity; and (2) the protected
activity was a motivating factor in the Agency's failure to extend Grievants
employment. If the Union fails to make the required prima facie showing, the case
ends without further inquiry. 35 FLRA @ 118. But that is only part of the story.
Once the Union has made a prima facie case, the burden devolves upon the
Agency to present evidence to justify its action. Only if the Agency fails to present
any evidence will a prima facie case suffice to prove reprisal. Notwithstanding the
Agencys opportunity to present evidence of justification, the burden of proving
reprisal rests solely with the Union.
Even if the Union makes the required prima facie showing, the Agency will
not be found to have violated the Grievants rights if the Agency can demonstrate,
by a preponderance of the evidence, that (a) there was a legitimate justification for
its action; and (b) the same action would have been taken even in the absence of
protected activity. Id. @ 118-119.
V.C. The Decision
It is clear that Grievant was engaged in protected activity when he filed his
first grievance. Furthermore, it was not unreasonable for him to be suspicious of
the Agencys motive in not renewing his term of employment, given the timing of
the final decision on his first grievance and the notice of non-renewal. Suspicion
may have been heightened by the encouraging news about funding that he heard at
15
the meeting on December 2, 2014. The Agencys attempts to dismiss the meeting
as a casual cookout are belied by the language of the announcement itself: I&E
Division Meeting and Cook Out and Attendance is mandatory for the first
portion . UX 10. Thus, it can be argued that the Union presented evidence as to
both aspects of retaliation. Timing alone, of course, cannot prove causation; that is
the post hoc, ergo propter hoc fallacy.4
Even if the Union is credited with having made a prima facie case,
ultimately the Agencys defense must prevail. Both the Director and Executive
Director testified without contradiction that the decision to let term employees go
was driven by funding considerations. Neither Union witness was familiar with the
funding issues, and the Union presented no rebuttal evidence after the close of the
Agencys defense. While it is true that a mechanic with crucial air conditioning
skill superior to Grievants was kept on,5 another mechanic who had never filed a
grievance was let go along with Grievant. It thus appears that grievant would not
have been retained even if he had not filed his first grievance, and the arbitrator so
finds.
https://en.wikipedia.org/wiki/Post_hoc_ergo_propter_hoc.
UX 8, which Grievant identified, is a 14-page list of tasks assigned to him between 10/2/12 and 9/30/14. Although the
print on the exhibit is of very poor quality, the arbitrator literally examined it with a magnifying glass and could find only a
single explicit reference to air conditioning, make 2 AC drain pans. Moreover, in his first grievance, Grievant made no
explicit reference to having performed air conditioning work. UX 1. These omissions, when combined with the Union
presidents email conceding that Grievant lacked air conditioning skills, provide compelling evidence that retention of the
other mechanic, but not grievant, was based upon skill sets.
It is important to note that nothing in this opinion should be construed as disparaging Grievants mechanical
abilities. To the contrary, the Agency representative in her opening statement described him as a valued employee.
16
hearing issue. SEIU District 1199 and Lorain County Community Action
Agency, 2015 WL 1671210 .8
Inasmuch as nothing further was said about the issue either at the hearing or in briefs, it
is deemed abandoned.
VII. Award
For all the foregoing reasons, the grievance is DENIED.
Dated September 30, 2015
________________________________
E. Frank Cornelius, PhD, JD, Arbitrator