FLRA DECISIONS

60 FLRA No. 89

ACTING WITHIN THE SCOPE OF ONE'S DUTIES

General Services Administration, Northeast and Caribbean Region, New York, New York and American Federation of Government Employees, Counsel 236, 0-AR-3779, November 30, 2004, 60 FLRA No. 89.

Holding

FLRA set aside, because mooted by a U.S. District Court decision, an award directing a factfinding hearing to determine whether an agency official was acting within the scope of his duties when he issued a memorandum to management officials that contained sensitive labor relations information which was subsequently leaked and that contained comments that prompted the union to charge the official with libel and slander.

Summary

A memo from the Assistant Regional Administrator (ARA), containing sensitive labor relations information and intended only for managers, supervisors and leaders, nonetheless got posted on the agency's e-mail for viewing by all GSA employees. The union filed a grievance, charging the ARA with libel and slander. The matter was referred to arbitration solely on the issue of arbitrability.

Although the arbitrator concluded that while libelous and slanderous statements made by federal employees that are within the scope of their employment aren't arbitrable, such statements that aren't made within the scope of their employment are and ordered a hearing on the issue of whether the ARA was acting within the scope of his employment.

The agency filed interlocutory exceptions claiming that its exceptions should nonetheless be resolved because they raised a plausible jurisdictional defect. In a supplemental filing it noted that the union president had filed a lawsuit in state court against the ARA claiming libel, and that the U.S. removed the case to a U.S. District Court which granted the Government's motion to substitute the United States as defendant pursuant to the certification by the U.S. Attorney General for the Southern District of New York that the ARA was acting within the scope of his employment with respect to the controversial memorandum. The court held that no judicial review of the Attorney General's certification was required because the plaintiff did not allege with particularity facts relevant to the certification. Besides, even if review were necessary, evidence showed the ARA was acting within the scope of his employment.

Given that the court granted the motion to substitute, it subsequently granted the motion to dismiss for lack of subject-matter jurisdiction because the Federal Tort Claims Act bars a suit for money damages against the U.S. based on a claim of libel.

In setting aside the award directing a factfinding hearing on the scope-of-employment issue, FLRA said the following:

The Arbitrator found, and the Union does not dispute, that this matter is not arbitrable if the assistant administrator was acting within the scope of his employment. The court's decision, which is final, has resolved this issue by finding that the assistant administrator was acting within the scope of his employment. Consequently, by the express terms of the Arbitrator's award, this dispute is not arbitrable. Accordingly, the Arbitrator's award directing factfinding on the scope-of-employment issue is moot, and we set it aside.

In a separate opinion Chairman Cabaniss disagreed with the analysis of the majority. In her view a defamation claim cannot qualify as a grievance under the FSLMRS because the law of defamation isn't issued for the purpose of affecting the working conditions of employees. She cited United States Dep't of the Treasury, United States Custom Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994), where the court held that if the grievance doesn't involve a law, rule, or regulation issued for the purpose of affecting the working conditions of employees, then the grievance is "outside both the arbitrator's and the FLRA's jurisdiction."

She also had concerns about pursuing a violation of state law through the NGP

Finally, because the underlying defamation lawsuit was filed against the individual agency manager rather than his agency, the conclusion I draw from the mootness analysis is that the arbitration proceeding also was against the individual rather than the agency. As such, I question whether a defamation claim seeking redress against an individual employee addresses the "law, rule, or regulation affecting conditions of employment" requirement set out in ' 7103(a)(9)(C)(ii) of our Statute. Conversely, I find no basis for this arbitration proceeding to have ever properly been before the Authority for adjudication, mootness or not.

 

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