34:0580(97)AR - - Veterans Affairs, Williams Jennings Bryan Dorn Veterans Hospital and AFGE Local 1915 - - 1990 FLRAdec AR - - v34 p580



[ v34 p580 ]
34:0580(97)AR
The decision of the Authority follows:


34 FLRA No. 97

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

WILLIAM JENNINGS BRYAN DORN VETERANS HOSPITAL

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL NO. 1915

0-AR-1758

ORDER DISMISSING EXCEPTIONS

January 25, 1990

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 Robert G. Williams filed by the American Federation of Government Employees, Local No. 1915 (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 U.S. Department of Veterans Affairs (the Agency) filed a motion to dismiss the Union's exceptions and an opposition to the Union's exceptions.

The Arbitrator denied the grievance of an employee who was reassigned and reduced in grade for submitting allegedly fraudulent documents to support her sick leave claim and for being absent without leave (AWOL) during her alleged sick leave. The Arbitrator found that the grievant should have been removed, as the Agency had first proposed. He ruled that the grievant's voluntary resignation was not effective to prevent the imposition of the removal penalty.

For the reasons stated below, we conclude that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. Therefore, we will dismiss the exceptions.

II. Background and Arbitrator's Award

The Agency proposed to remove the grievant from her position of clerk-typist (timekeeper) for being AWOL and for submitting fraudulent documents to support a sick leave claim. The grievant filed a grievance over the proposed removal. During the processing of the grievance, the Agency reduced the proposed removal to a reduction in grade and reassignment as a food service worker. Arbitrator's Award at 3 and 17. Thereafter, the Union notified the Agency that it intended to arbitrate the grievant's dispute.

Following her reduction in grade and reassignment, the grievant claimed that she was physically unable to perform the new duties and submitted several notes from her doctor to support the claim. The Agency rejected the grievant's claim of disability and placed the grievant on leave without pay. The grievant eventually resigned from her position.

The grievance was submitted to arbitration on the following issues:

(1) Did the Grievant voluntarily resign her employment and, if so, what shall be the remedy?

(2) Did the Agency discipline the Grievant for just cause and, if not, what shall be the remedy?

Arbitrator's Award at 2.

The Arbitrator found that the grievant voluntarily resigned from the Agency. However, the Arbitrator ruled that her resignation "did not settle the pending dispute with the Agency" because the grievant could "claim she should have been exonerated from all charges" and the Agency could claim that "the charges of fraudulent documentation and being AWOL were supported by the evidence." Id. at 6.

On the issue of just cause, the Arbitrator found that the evidence supported the Agency's contention that the grievant submitted a false medical certificate to support her claim for sick leave. He concluded that "[t]he discipline of removal must be reinstated. The Grievant's record shall show she was removed from service for filing a false medical certificate and for being AWOL." Id. at 17.

The Arbitrator added a statement chastising the Agency's advocate for including in his post-hearing brief evidence concerning the grievant's employment activity during the period in which she alleged that she was unable to perform the duties of the position to which she had been reassigned. The Arbitrator stated that presentation of that evidence was not made at the hearing and that the advocate should have moved to have the case reopened if he desired to have the evidence considered.

The Arbitrator made the following award:

The Grievance is hereby denied in accordance with the opinion. The grievant resigned effective January 31, 1989. Prior to her resignation the Grievant filed a false medical certificate, was AWOL for the relevant period and subject to removal under the just cause doctrine.

Arbitrator's Award at 18.

III. Positions of the Parties

The Union contends that the award is deficient because the Agency advocate "violated the Arbitration Hearing Code of Ethics by introducing new evidence in the arbitration brief that had not been presented during the hearing process." Exceptions at 1. The Union contends that "[a] mere chastising of the agency's advocate is not sufficient." Id. The Union states that it "views the acceptance of the new evidence from the Agency's advocate as the Arbitrator exceeding his authority." Id. at 2. The Union also contends that the award is based on a nonfact because fraud was not proven by the Agency.

The Agency contends that the Authority does not have jurisdiction over this matter under section 7122(a) of the Statute because the award relates to a removal under 5 U.S.C. § 7512. The Agency asserts that removal is an issue in the case because the Arbitrator ruled that the punishment of removal must be reinstated and the grievant's record must be changed to show that she was removed for filing a false medical certificate and for being AWOL. The Agency also alleges that the Union's exceptions are procedurally defective and that the exceptions fail to set forth evidence or arguments bearing on the issues.

IV. Discussion

We find that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.

Section 7122(a) provides, in pertinent part, as follows:

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) include serious adverse actions covered under 5 U.S.C. § 7512, such as reductions in grade. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703.

The Arbitrator's award relates to the grievant's reduction in grade and reassignment from clerk/typist (timekeeper) to food service worker. See Arbitrator's Award at 3 and 17; Agency's Opposition at 1. Because the grievant's reduction in grade is a matter covered under 5 U.S.C. § 7512 and described in section 7121(f), exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Consequently, we are without jurisdiction to review the Union's exceptions and we will dismiss them. See, for example, Army and Air Force Exchange Service and American Federation of Government Employees, Region Council 236, 33 FLRA 815 (1988) (the Authority did not have jurisdiction under section 7122(a) over an arbitrator's award denying a grievance over an employee's downgrade; a downgrade is similar to a reduction in grade, which is an action covered by 5 U.S.C. § 7512); American Federation of Government Employees, Local 3369, AFL-CIO and Social Security Administration, New York Region, 16 FLRA 866 (1984) (a reduction in grade without grade and pay retention benefits is a matter covered under 5 U.S.C. § 7512 and therefore