31:1178(100)AR - - AFGE, LOCAL 3627 and DEPARTMENT OF HEALTH AND HUMAN SERVICES SSA, OFFICE OF HEARINGS AND APPEALS, REGION IV Agency - - 1988 FLRAdec AR - - v31 p1178
[ v31 p1178 ]
The decision of the Authority follows:
31 FLRA NO. 100
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3627
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION, OFFICE OF
HEARINGS AND APPEALS, REGION IV
Case No. 0-AR-1490
ORDER DISMISSING EXCEPTIONS
I. Statement of the Case
This matter is before the Authority on exceptions to the
award of Arbitrator Jason M. Berkman filed by the Union under
section 7122(a) of the Federal Service Labor - Management
Relations Statute (the Statute) and part 2425 of the Authority's
Rules and Regulations. Because the Arbitrator's award concerns a
removal from Federal service, we are without jurisdiction to
review the Union's exceptions.
II. Background and Arbitrator's Award
Following a written reprimand, the Agency suspended the
grievant for 7 days for continuing deliberate insubordination.
The insubordination was based on the grievant's refusal to state
dates and times of departure from and return to duty status and
to submit documentation to support a travel voucher as directed
by his supervisor. The grievant filed a grievance over the
While the grievance over the 7-day suspension was pending
arbitration, the Agency removed the grievant from Federal service
after his refusal to comply with renewed requests for the same
documentation. The Agency found that the grievant had engaged in
continuing acts of insubordination and deliberately had made
false statements. The grievant filed a grievance over the
removal, alleging that the Agency's actions were taken
against him because of his Union activities, his "whistleblowing"
activities, and his ethnic origin. By agreement of the parties,
the grievances were consolidated for arbitration.
The Arbitrator found that the grievances involved continuing
acts of insubordination by the grievant for which he was
progressively disciplined. The Arbitrator denied the grievances,
finding that: (1) the grievant had not established that the
Agency's actions were taken in reprisal for his Union activities
or his whistleblowing activities; (2) the Agency had met the
burden of showing that its actions were not based on the
grievant's ethnic origin; and (3) the Agency had demonstrated
that it had valid, non-discriminatory reasons to justify the
suspension and removal.
The Union repeats the arguments it made before the
Arbitrator. The Union contends, without supporting argument or
specific reference, that the Arbitrator misinterpreted the
parties' negotiated agreement and that his findings are not
supported by the record. Further, the Union contends, without
supporting citations, that the Arbitrator's decision is not
consistent with decisions of the Comptroller General or other
The Agency filed an opposition to the Union's exceptions.
The Agency contends that the Authority is without jurisdiction to
entertain the exceptions as to the grievant's removal. Further,
the Agency argues that the Authority should dismiss the
exceptions as to the suspension because the exceptions are not
supported by evidence or specific grounds for review as required
by the Authority's Regulations. According to the Agency, the
exceptions constitute nothing more than disagreement with the
Section 7122 (a) of the Statute provides, in pertinent
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).
The matters described in section 7121(f) of the Statute
include adverse actions, such as removals, under 5 U.S.C. 7512.
Review of arbitration awards relating to such matters, like
review of decisions of the Merit 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.
Separate grievances were filed over the grievant's
suspension and subsequent removal. However, the grievances, as
found by the Arbitrator, involved continuing acts of
insubordination by the grievant for which he was progressively
disciplined. We find that the suspension was an inseparable part
of the removal. See U.S. Army Missile Command and American
Federation of Government Employees, AFL - CIO, Local 1858, 28
FLRA 11 (1987) (exceptions concerning arbitration award
pertaining to performance appraisal which was basis for
employee's removal may not be filed with Authority); U.S. Army
Armament Research, Development, and Engineering Center (ARDEC),
Dover, New Jersey and National Federation of Federal Employees
(NFFE), Local 1437, 24 FLRA 837, 839 (1986).
Because the Arbitrator's award concerns a matter covered by
5 U.S.C. 7512, that is, the removal of the grievant from service,
exceptions to the award may not be filed with the Authority under
section 7122(a) of the Statute. The Authority, therefore, is
without jurisdiction to review the Union's exceptions. U.S. Army
Missile Command, Redstone Arsenal and American Federation of
Government Employees, Local 1858, 31 FLRA 715 (1988).
The Union's exceptions are dismissed.
Issued, Washington, D.C., April 22, 1988.
Jerry L. Calhoun, Chai