FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between

AFGE LOCAL NO. 2317,
Union,
and

FMCS No. 15-02344

U.S. MARINE CORPS,

Employer.
_______________________________/

OPINION OF THE ARBITRATOR

September 30, 2015
After a Hearing Held at the Marine Corps Logistics Base
In Albany, Georgia, on August 6, 2015

For the Union:

For the Employer:

Denise Duarte Alves

AFGE Legal Rights Attorney
Office of General Counsel
80 F Street, NW
Washington, DC 20001

Katrina J. Stanfill
Marine Corps Logistics Base
Civilian Human Resources Office SE
814 Radford Boulevard, Suite 20319
Albany, GA 31704-0319

I. The Nature of the Case

Grievant was a civilian maintenance worker in the Central Repair Services Shop
(CRS) at the Marine Corps Logistics Base in Albany, Georgia (Employer or
Agency). He is a member of American Federation of Government Employees, Local
2317 (Union). During the time frame covered by this case, Grievant was employed
for a specific term expiring March 11, 2014. In a performance review for the fiscal
year 10/1/12-9/30/13, Grievants supervisor wrote that Grievant was an Excellent
worker, goes above and beyond. [Grievant] does work far above his job rating. UX
11. Subsequently, Grievants term of employment was extended until March 9, 2015.
On July 22, 2014, Grievant filed a first grievance (UX 1) requesting a
promotion, raise and retroactive compensation pursuant to the accretion of duties
clause in Article 31, Section 2(b)(3) of the collective bargaining agreement (JX 1 or
CBA). That first grievance was denied finally on November 5, 2014. The very next
day, Grievant was notified that his term of employment would not be extended further.
On December 23, 2014, Grievant filed a second grievance, alleging retaliation for
having filed the first one. This case concerns the second grievance.
II. The Unions Perspective as Expressed in Its Brief
II.A. The Unions Issue
The Union contends the Marine Corps Logistics Base (Agency) violated the
CBA and the law when it failed to renew Grievants term employment in retaliation for

Grievant having previously filed a grievance.

Union Brief @ 2.
II.B. The Facts as Viewed by the Union
(1) Grievant worked as a WG-4749-08 Maintenance Worker in the Installation and
Environmental (I & E) Division at the Marine Corps Logistics Base. JX 10, 12.
(2) The Grievant has worked at the Agency since October 2004.
(3) The Grievant's position of WG-4749-08 Maintenance Worker was a term
appointment. JX 10.
(4) The Grievant's term appointment had been previously renewed by the Agency.
(5) The Grievant was a knowledgeable employee with a very diverse skill set, who
had consistently received strong performance evaluations. UX 8, 11.
(6) On July 22, 2014, Grievant filed a first step grievance with Supervisor K. H.,
pursuant to Article 11 of the CBA. UX 1.
(7) In the July 2014 grievance, Grievant alleged that he was performing the duties
of a WG-4749-10 Maintenance Mechanic without being properly compensated.
As remedy, Grievant sought a retroactive promotion. UX 1.
(8) On November 6, 2014, the day after receiving the Agency's second step
decision for the grievance filed in July 2014, Grievant received notice that his
term employment with the Agency would end on March 9, 2015, and would not
be renewed. JX 7, UX 9.

(9) On December 2, 2014, Grievant, while attending an I & E division meeting

and cookout, became aware that adequate funding was available to continue
operations and funding of various term positions.
(10) Other term employees in the I & E Division were reassigned in lieu of their
term appointments expiring. UX 2.
(11) On December 23, 2014, Grievant filed a grievance alleging that the Agency's
decision not to renew his term employment was in retaliation for him having
filed the July 2014 grievance, and the Agencys action violated Article 6 of the
CBA. JX 6.
(12) On February 12, 2015, I & E Director F. B. issued his denial of the December
23, 2014 grievance. JX 5.
(13) On February 24, 2015, the Grievant amended his first step grievance and filed
a second step grievance wherein it alleged that the Agency's action of not renewing
the Grievant's term employment while having contractors perform the work
previously performed by the Grievant was retaliation for the Grievant previously
filing a grievance. JX 4.
(14) On March 17, 2015, Executive Director K. M. issued his decision denying the
second step grievance. JX 3.
(15) On April 24, 2015, the Union properly invoked arbitration pursuant to
Article 12 of the CBA. JX 2.

Union Brief @ 2-4.

II.C. The Unions View of the Applicable Law
In general, employees working term appointments may not contest adverse
or performance based actions under statutory or negotiated procedures. Federal
Employees Metal Trades Council and Dep't of the Navy, 38 FLRA 1410 (1991).
Where a grievance alleges that the non-renewal of a term appointment was based
on an unfair labor practice, such grievance is arbitrable. FDIC and NTEU, Chapter
256, 49 FLRA 894, 899-900 (1994). When an employee asserts a right that
emanates from a collective bargaining agreement, that employee engages in
protected activity under 5 USC 7102. Employees secure protected status when
they exercise their rights under contractual grievance procedures. Dep't of Labor
and Bassau, 43 FLRA 1036, 1037-1040 (1992).
Where an employee's protected activity played a part in an agency's decision
adversely affecting an employee, the employee may allege that the agency violated
5 USC 7116(a)(l) and (2), which provide in pertinent part:
(a) [I]t shall be an unfair labor practice for an agency
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor organization by
discrimination in connection with hiring, tenure, promotion, or other
conditions of employment ... .
Such activity on the part of an agency constitutes reprisal.
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The test to be applied in situations where considerations of an employee's

participation in protected activity played a part in an agency's decision adversely
affecting an employee was outlined in Letterkenny Army Depot and Intl
Brotherhood of Police Officers, Local 358, 35 FLRA 113 (1990). Under
Letterkenny, to establish a prima facie case of reprisal one must show: (1) the
employee against whom the alleged discriminatory action was taken was engaged
in protected activity; and (2) the protected activity was a motivating factor in the
agency's treatment of the employee in connection with a condition of
employment. Id. @ 118.
Union Brief @ 4-5.
III. The Agencys Perspective as Expressed in Its Brief
III.A. The Agencys Issue
Was the Grievant subject to retaliation for the previous filing of a grievance
when his term appointment was not extended?
Agency Brief @ 2.
III.B. The Facts as Viewed by the Agency
Employees in time-limited, term positions "may" be extended but they are not
entitled to it; contrary to the Grievant's assertions of reprisal or retaliation, the Agency
made great efforts to retain the Grievant as an employee; and, the Agency did not
reprise against the grievant when the decision was made to not extend his term

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.
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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

doesnt have the HVAC capabilities.1 UX 2.

IV.A.2. Grievant
Grievant was a mechanic who performed a wide variety of tasks. UX 8. He
began work at the Marine Base in 2004. He tried to be a good employee and needs
a job. He filed a grievance claiming that he had been doing work well above his
job classification. UX 1. The Executive Director denied the grievance in a letter
dated November 5, 2014, which stated in pertinent part:
c. Per your chain of command, you were assigned approximately 365 work
orders for the timeframe of March 2013 through October 2014, of which 351
were completed. You only submitted 29 alleged higher-graded work orders
which, out of 365 work orders to be considered for review, which is only an
approximate 12.5% of the work orders assigned.
d. Per [CBA], Article 14, Section 4 When a unit employee is temporarily
assigned by the supervisor to a position within the unit classified at a higher
grade for more than thirty (30) days, the employee, if qualified, shall be
temporarily promoted. You were not temporarily assigned and/or detailed
by management to a higher-grade or to higher-graded duties and you have
failed to show that any alleged higher-graded duties exceeded 30 days in a
12-month period. UX 9, paragraph 5.
The day after the grievance was denied, Grievant received notice that his
employment would not be extended. JX 7. Grievant did not understand why his
employment was not being extended, as work was going well. On December 2,
2014, he attended an I&E Division Meeting and Cook out from which he came
away with the impression that money would be available to fund his position. The

HVAC is an abbreviation for heating, ventilating, and air conditioning.

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meeting announcement stated the following:

Intent: On 2 Dec 2014, I&E will hold a get together and cook out for all I&E
employees. The division director will address the group, recognize
upcoming employees that are retiring, and FREE food will be provided
immediately following. Attendance is mandatory for the first portion and
everyone is highly encouraged to bring activities to engage in for the
remainder of the afternoon. We look forward to everyones attendance and
utilizing this opportunity to take a break from the daily grind. If you have
any questions please contact your supervisor. UX 10, italics supplied.
Grievant felt that his employment would be extended and asked his supervisor to
contact higher management about his status. The response came back negative.
Grievant testified that he had only two years to go before retirement. He
understood that there was no guarantee his term would be extended, but claimed
that terms had always been extended in the past. He filed the subject grievance (JX
6), which was denied supposedly because of budget cuts. He himself is not familiar
with budget matters. He applied for other jobs, such as boiler operator, but nothing
came through. Not all term employees were let go. Grievant feels that he is a
victim of retaliation. He wants his job back.
IV.B. Agency Witnesses
IV.B.1. D. M. J., HR Supervisor
She processes term employees. Term limits are posted in job
announcements, and term employees are made aware of the limits. Terms can be
extended up to a maximum of 4 years, and that has been done in some cases.
However, not all terms are extended.
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IV.B.2. F. R. B., Director I & E Division

The Director has held that position since June of 2008. He is in Grievants
chain of command. Part of his job is to handle terminations. He decided the subject
grievance (JX 6) at the first step and issued the notice of Expiration of Term
Employment, dated 6 Nov 2014 (JX 7), to Grievant. He terminated another term
maintenance worker that same day. AX 1. That other worker had never filed any
grievance. The Director typically gives employees at least 90 days notice of
termination. In the case of these two maintenance workers, he did not want to spoil
their Christmas and so gave them notice well before then.
Discussions about a decrease in maintenance work began as long ago as
2011. The loss of funds from various sources was projected to be in the millions of
dollars. The Director was told to cut costs. He does not have complete flexibility in
allocating money. He could not control overhead, but he could cut labor costs. He
cut $3,000,000, including labor. He sought to dismiss discussions of funding and
budgets that occurred at the December 2, 2014 meeting, claiming that the meeting
was not a formal event. UX 10.
No names were associated with reductions in the labor force. The Director
let 16 contractors go. Positions left vacant through natural attrition were not filled.
Those retained were kept on the basis of skill sets and recommendations of
supervisors. One particularly crucial skill is air conditioning repair, at which one

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retained mechanic possessed greater skill than Grievant.

The Directors frustration with the grievance is clear from his response:
b. While you allege your term position is not being renewed due to alleged
retaliation, management does not condone retaliation, nor have you provided
any evidence of such. The expiration of your term position is in accordance
with [5 CFR 316.301] and, accordingly, you have no evidence to support
the alleged retaliation. Furthermore, the other employee, who has no
grievance on record, was also not extended.
c. Your allegation in which you allege a violation against memorandum
OMB Circular A-76 Public-Private Competition Prohibited is unsupported.
Furthermore, per [CBA], Article 11, any matters precluded by law or the
content of any government-wide regulation may not be raised under the
negotiated grievance procedure.
4. Based on the above information and a detailed review of the
circumstances surrounding the grievance, it is very apparent you have
unresolved matters in regards to your employment here within I&E, which
are of great importance to you, and for that, I am sincerely apologetic;
however, your grievance is not only offensive, it is unfounded and
unsupported. Therefore, your grievance must be respectfully denied. JX 5,
paragraphs 3.b & c, 4.
Despite the Directors frustration, he attempted to find another position for
Grievant.
IV.B.3. K. D. M., Executive Director Marine Corps Logistics Base
He has been the Executive Director for 6 years. He negotiates with the
Union. He denied the subject grievance at the second level on March 17, 2015,
writing:
b. It is understandable that you would be upset that your position is
ending, and for that reason, because it does [a]ffect you financially, [the
Director] gave you a generous advanced notification of your term expiration.
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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

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(2) in accordance with applicable laws

(A) to hire, assign, direct, layoff, and retain employees in the agency ;
(B) to assign work, to make determinations with respect to contracting out,
and to determine the personnel by which agency operations shall be
conducted;
(C) with respect to filling positions, to make selections for appointments
from
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; .
AFGE Local No. 3981 and Bureau of Prisons, 14-2 ARB 6299, 2014 WL
5359268, 114 LRP 40714.2
Any case in which a governmental unit interposes lack of funding as a
defense tests the limits of an arbitrators authority to grant a remedy that would
cause additional expense. Bureau of Prisons, supra (hiring decisions based upon
funding level); UAW Local No. 2600 and County of Kent, Michigan, 105 LRP
50250 (Arb 2002) (In light of the fiscal realities facing the County, it would be
irresponsible for the arbitrator to order Grievants reinstatement)3.
V.B. The Burden of Proof
Because this is not a disciplinary case, the Union has the burden of proof.
Bureau of Prisons, supra. As noted above, the Union cites the Letterkenny case for
the proposition that, to establish a prima facie case of reprisal, the Union must

Slip opinion available at http://www.scribd.com/doc/240266623/AGFE-Local-3981-and-Bureau-of-Prisons.

Slip opinion available at http://www.scribd.com/doc/46605357/UAW-Local-2600-and-Kent-County-MI-3-29-02.

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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

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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.
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V.D. The Unions Request for Attorney Fees

In its Brief @ 11, the Union made the following request for attorney fees:
Should this matter be sustained in whole or in part, the Union requests that
the Arbitrator retain jurisdiction for purposes of resolving any question of
attorney fees to which the Union may be entitled based on the Arbitrators
findings. (Footnote omitted.)
Attorney fees may be awarded in a proper case. OPEIU Local 2001 and U.S. Dept
of Energy, 111 LRP 5719 (Arb 2003);6 AFGE Local No. 1985 and Dept of
Veterans Affairs, 115 LA 198, 166 LRR 168, 02-1 ARB 3067, 101 FLRR 2-1107
(Arb 2000).7 Although the Union presented a fine brief, this is not a proper case for
such an award.
VI. Prehearing Issue
On July 30, 2015, the arbitrator received an email about a prehearing issue that
had arisen at the last minute, to which he replied as follows:
Last-minute issues put arbitrators in a difficult position. Inasmuch as the hearing
is scheduled for next Thursday, August 6, and I will be traveling on Wednesday,
there is little time to consider this belated issue. In any event, I would not make
a ruling without reviewing the grievance, the collective bargaining agreement,
and the communications between the parties, none of which I have seen.
In light of these circumstances, I do not feel that there is any practical solution
other than for the parties to address this new issue at the hearing. In an
arbitration earlier this year, I followed that procedure with respect to a pre-

Slip opinions available at http://www.scribd.com/doc/46598839/OPEIU-Local-2001-and-US-Dept-of-Energy-10-10-03,

http://www.scribd.com/doc/47596109/OPEIU-Local-2001-and-US-Dept-of-Energy-12-5-03.
7

Slip opinion available at http://www.scribd.com/doc/46661940/AFGE-Local-1985-and-Dept-of-Veterans-AffairsMedical-Center-Dublin-GA-12-29-00.

17

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

Slip opinion available at https://www.scribd.com/doc/283127937/SEIU-District-1199-and-Lorain-County-CommunityAction-Agency-1-26-15.

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