34:0027(7)AR - - Veterans Affairs, Medical Center, Allen Park, MI and AFGE Local 933 - - 1989 FLRAdec AR - - v34 p27
[ v34 p27 ]
The decision of the Authority follows:
34 FLRA No. 7
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
ALLEN PARK, MICHIGAN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DISMISSING EXCEPTIONS
December 21, 1989
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Barry C. Brown. The Arbitrator denied the grievance and sustained the grievant's removal from the Federal service. The exceptions were filed by the American Federation of Government Employees, Local 933 (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. The Veterans Administration, Allen Park Medical Center (the Agency) filed an opposition. Because the Arbitrator's award concerns the removal of the grievant from the Federal service, we are without jurisdiction to review the Union's exceptions. Accordingly, we will dismiss the Union's exceptions.
II. Background and Arbitrator's Award
The Agency removed the grievant from his position as a boiler plant operator on December 4, 1987, for being absent without leave (AWOL) several times. During one instance of AWOL, the grievant left the boilers unattended for 2 hours.
The Arbitrator found that leaving the boilers unattended for 2 hours was "a very serious act of misconduct." Award at 27. Furthermore, the Arbitrator noted that the Agency disciplined the grievant in writing for the third time in 4 months. The Arbitrator also determined that management did not violate the parties' agreement by failing to provide assistance to the grievant with his drug problem because the grievant denied he had a drug problem and refused management's offers of assistance. Award at 24-25. The Arbitrator also found that the grievant's confinement to a substance abuse center at the time of his removal was not a factor in the Agency's decision to terminate the grievant because the Agency was not notified of the grievant's admission to a center. Award at 25. Finally, the Arbitrator found that although the grievant received less than 30 days' notice of his proposed removal, this procedural defect was not fatal to the Agency's case because no harm to the grievant was shown. Award at 26-27.
III. Positions of the Parties
The Union contends that the Arbitrator's award is deficient because it is contrary to law, regulation, and the collective bargaining agreement. The Union argues that the grievant did not receive 30 days' advance written notice of his removal as required by 5 U.S.C. º 7513(b)(1). The Union also asserts that the Arbitrator failed to consider that the Veterans' Preference Act of 1944 entitles veterans to 30 days' advance notice of removal.
The Agency contends that the Authority is without jurisdiction to review the Agency's exceptions because this case involves a removal action under 5 U.S.C. º 7121(f). The Agency argues that section 7121(f) of the Statute provides that removal actions must be appealed under the procedure applicable to cases decided by the Merit Systems Protection Board. Therefore, the Agency asserts that the Union must seek judicial review under 5 U.S.C. º 7703 instead of review by the Authority.
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). (Emphasis added.)
The matters described in section 7121(f) of the Statute include adverse actions, such as removals, under 5 U.S.C. º 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. º 7703.
Because the Arbitrator's award concerns a matter covered by 5 U.S.C. º 7512, that is, the grievant's removal from the Federal 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. See, for example, National Treasury Employees Union, Chapter 202 and Department of the Treasury, Financial Management Service Headquarters Office, 32 FLRA 1075 (1988).
Accordingly, the Union's exceptions are dismissed.