U.S. Immigration and Naturalization Service (Agency) and American Federation of Government Employees, National Immigration and Naturalization Service Council (Union) 



[ v06 p39 ]
06:0039(12)AR
The decision of the Authority follows:


 6 FLRA No. 12
 
 U.S. IMMIGRATION AND
 NATURALIZATION SERVICE
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 NATIONAL IMMIGRATION AND
 NATURALIZATION SERVICE
 COUNCIL
 Union
 
                                            Case No. O-AR-165
 
                        ORDER DISMISSING EXCEPTION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR BARNETT M. GOODSTEIN FILED BY THE AGENCY UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).  FOR THE REASONS THAT FOLLOW, THE AUTHORITY IS WITHOUT
 JURISDICTION TO REVIEW THE AGENCY'S EXCEPTION AND ACCORDINGLY IT MUST BE
 DISMISSED.
 
    SECTION 7122(A) OF THE STATUTE PROVIDES IN PERTINENT PART:
 
    EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER 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 THIS TITLE).
 
    AS RELEVANT TO THIS CASE, THE MATTERS DESCRIBED IN SECTION 7121(F) OF
 THE STATUTE INCLUDE THOSE COVERED UNDER 5 U.S.C. 7512 WHICH, IN TURN,
 SETS FORTH SPECIFIED ADVERSE ACTIONS INCLUDING SUSPENSIONS FOR MORE THAN
 14 DAYS.  PURSUANT TO SECTION 7121(F), REVIEW OF AN ARBITRATION AWARD
 RELATING TO SUCH MATTERS MAY BE OBTAINED IN ACCORDANCE WITH 5 U.S.C.
 7703 WHICH PROVIDES FOR JUDICIAL REVIEW OF FINAL DECISIONS OF THE MERIT
 SYSTEMS PROTECTION BOARD AND UNDER SECTION 7121(F) APPLIES TO THE AWARD
 OF AN ARBITRATOR AS IF THE MATTER HAD BEEN DECIDED BY THAT BOARD.
 
    THE GRIEVANCE SUBMITTED TO ARBITRATION IN THIS CASE CONCERNED THE
 GRIEVANT'S SUSPENSION FOR 15 DAYS FOR REFUSING TO MAKE A WRITTEN REPORT
 OF A CERTAIN INCIDENT WITHOUT WRITTEN ASSURANCE THAT THE REPORT WOULD
 NOT BE THE BASIS OF DISCIPLINARY ACTION AGAINST HIM.  NOTING IN GENERAL
 THAT UNDER THE UNITED STATES CONSTITUTION PERSONS MAY NOT BE REQUIRED TO
 TESTIFY AGAINST THEMSELVES, THE ARBITRATOR RULED THAT THE AGENCY COULD
 NOT ORDER THE GRIEVANT TO MAKE SUCH A REPORT.  ACCORDINGLY, AS HIS
 AWARD, THE ARBITRATOR FOUND NO JUST CAUSE FOR THE GRIEVANT'S SUSPENSION.
 
    IN ITS EXCEPTION TO THE AWARD, THE AGENCY ACKNOWLEDGES THAT THE
 GRIEVANCE WHICH GAVE RISE TO THE ARBITRATION PERTAINS TO A MATTER
 COVERED BY 5 U.S.C. 7512.  NEVERTHELESS, THE AGENCY POINTS TO THE
 ARBITRATOR'S REFERENCE TO THE CONSTITUTION AND ASSERTS THAT IN MAKING
 SUCH A REFERENCE THE ARBITRATOR WAS PASSING ON THE CONSTITUTIONALITY OF
 AN AGENCY ADMINISTRATIVE ACTION.  THE AGENCY MAINTAINS THAT IN DOING SO
 THE ARBITRATOR EXCEEDED HIS AUTHORITY.  THUS, THE AGENCY CHARACTERIZES
 THE QUESTION BEFORE THE AUTHORITY AS ONE OF "ARBITRABILITY,"
 SPECIFICALLY, THE ARBITRATOR'S JURISDICTION TO PASS ON THE
 CONSTITUTIONALITY OF AN AGENCY ADMINISTRATIVE ACTION.  THE AGENCY
 ACCORDINGLY CONTENDS THAT THE APPEAL IS PROPERLY BEFORE THE AUTHORITY
 AND REQUESTS THAT THE AUTHORITY VACATE THE AWARD.
 
    CONTRARY TO THE AGENCY'S CONTENTION, THE AUTHORITY FINDS NO STATUTORY
 BASIS ON WHICH TO REVIEW THE AWARD.  WITHOUT DECIDING IF COLLATERAL
 ISSUES ADDRESSED BY AN ARBITRATOR IN RESOLVING A MATTER DESCRIBED IN
 SECTION 7121(F) OF THE STATUTE MAY BE PROPERLY SUBJECT TO REVIEW BY THE
 AUTHORITY UNDER SECTION 7122(A), IT IS CLEAR IN THIS CASE THAT THE
 AGENCY'S CHALLENGE TO THE ARBITRATOR'S AWARD PERTAINS TO THE
 ARBITRATOR'S RESOLUTION OF THE MERITS OF THE GRIEVANCE.  ALTHOUGH
 CHARACTERIZING ITS APPEAL AS A CHALLENGE TO THE ARBITRATOR'S
 "JURISDICTION," THE AGENCY'S EXCEPTION DIRECTLY CONCERNS THE PROPRIETY
 OF THE ARBITRATOR'S DETERMINATION OF THE MERITS OF THE GRIEVANCE AND, AS
 RELIEF, ESSENTIALLY REQUESTS THAT THE AUTHORITY VACATE THAT
 DETERMINATION.  THUS, BOTH THE AWARD AND THE AGENCY'S EXCEPTION TO IT
 "RELAT(E) TO A MATTER DESCRIBED IN SECTION 7121(F). . . . "
 CONSEQUENTLY, THE AUTHORITY HAS NO BASIS ON WHICH TO REVIEW THE
 ARBITRATOR'S AWARD.
 
    ACCORDINGLY, AND APART FROM OTHER CONSIDERATIONS, THE AGENCY'S
 EXCEPTION IS ORDERED DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 10, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELAT