32:1003(143)AR - - VA Medical Center, Birmingham, AL and AFGE - - 1988 FLRAdec AR - - v32 p1003
[ v32 p1003 ]
The decision of the Authority follows:
32 FLRA No. 143
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION MEDICAL
CENTER, BIRMINGHAM, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT
Case No. 0-AR-1580
ORDER DISMISSING EXCEPTIONS
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Nicholas A. Beadles. A grievance over the removal of the grievant was submitted to arbitration. The Arbitrator determined that the Activity was timely in the processing of the grievance and that the Union timely invoked arbitration of the grievance. Accordingly, he ruled that the grievance was arbitrable. On the merits, the Arbitrator determined that the removal was for just case. Accordingly, the Arbitrator denied the grievance.
The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition.
Because the Arbitrator's award relates to the removal of the grievant from the Federal service, we are without jurisdiction to review the Union's exceptions.
II. Background and Arbitrator's Award
The Activity removed the grievant from the Federal service. A grievance was filed challenging the removal. The grievance was submitted to arbitration on the issues of (1) whether the Activity had timely processed the grievance; (2) whether the Union had timely invoked arbitration; and, if so, (3) whether the removal of the grievant was for just cause.
The Arbitrator determined that the Activity was timely in the processing of the grievance and that the Union timely invoked arbitration of the grievance. Accordingly, he ruled that the grievance was arbitrable. On the merits, the Arbitrator determined that the removal was for just cause. Accordingly, he denied the grievance.
The Union's exceptions are directed only to the Arbitrator's rulings that the Activity was timely in the processing of the grievance and that arbitration was timely invoked. The Union contends that the Arbitrator's ruling that the Activity was timely in the processing of the grievance is (1) contrary to the collective bargaining agreement; (2) contrary to the evidence; (3) beyond the scope of the Arbitrator's authority; and (4) contrary to law.
With respect to the ruling on whether arbitration was timely invoked, the Union contends that the Arbitrator should not have permitted the Activity to raise this issue. The Union argues that under the collective bargaining agreement, the Activity was barred from raising the issue of whether arbitration had been timely invoked because it had not been raised earlier.
Section 7122(a) of the Statute provides, in pertinent part:
Either party to arbitration under [the Statute] 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 [the Statute]).
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. In addition, review of determinations of procedural arbitrability by arbitrators in grievances relating to adverse actions under 5 U.S.C. § 7512 may also be sought by appeal to the Federal Circuit. See Huey v. Department of Health and Human Services, 782 F.2d 1575 (Fed. Cir. 1986). An arbitrator's award on whether there has been compliance with the procedural requirements of the parties' collective bargaining agreement in the processing of a grievance over an adverse action covered by 5 U.S.C. § 7512 relates to the adverse action. Accordingly, exceptions to such awards must be dismissed. For example, Department of Justice, Bureau of Prisons and American Federation of Government Employees, Local 1741, 23 FLRA 802 (1986).
In this case, the Arbitrator's award on whether the Activity was timely in the processing of the grievance and whether the Union timely invoked arbitration relates to the grievant's removal. Because the Arbitrator's award relates to the grievant's removal, which is a matter covered by 5 U.S.C. § 7512, exceptions to the award cannot be filed with the Authority under section 7122(a) of the Statute. Therefore, we are without jurisdiction to review the Union's exceptions, and we will order them dismissed. See id.
The Union's exceptions are dismissed.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY