44:1192(94)AR - - AFGE Local 2094 and VA, Manhattan Medical Center - - 1992 FLRAdec AR - - v44 p1192
[ v44 p1192 ]
The decision of the Authority follows:
44 FLRA No. 94
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
MANHATTAN MEDICAL CENTER
ORDER DISMISSING EXCEPTIONS
May 7, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles J. Coleman 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. The Agency filed an opposition to the Union's exceptions.
The grievant grieved her removal from the Agency. In his award, the Arbitrator ordered that the grievant be reinstated to her position within two weeks from the date of receipt of the award, subject to certain stated conditions and without backpay. 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. Accordingly, we will dismiss the exceptions.
II. Background and Arbitrator's Award
The grievant is a ward clerk in the Agency's Manhattan Medical Center. The matter submitted to arbitration concerned her removal for engaging in three allegedly hostile confrontations with a physician at the Medical Center and for failing to furnish honest testimony during the investigation of the incidents.
The Arbitrator found clear and convincing evidence establishing that the grievant was guilty of the charges levied against her, that they were serious offenses, and that they "carry the potential of removal." Award at 8. In addressing the appropriateness of the penalty imposed, however, the Arbitrator concluded that removal was not an appropriate penalty for the confrontations with the physician and that there were several mitigating factors with regard to the imposition of the penalty for her deceptive and fabricated testimony. Recognizing that the infractions were serious, however, the Arbitrator ordered reinstatement of the grievant under a number of conditions and without backpay.
III. Positions of the Parties
A. The Union
In its exceptions, the Union argues that reinstatement without backpay violates the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator found in effect both that the removal action was procedurally defective and that it was unjustified or unwarranted. The Union also contends that the Arbitrator did not articulate a basis in rule, law or regulation that permits reinstatement without backpay.
In its response to the Authority's order to show cause why the exceptions should not be dismissed because the Authority lacks jurisdiction over the matter or because the exceptions were untimely filed, the Union contends that until the Arbitrator rules definitively why backpay should not be awarded, the case "cannot be considered 'final.'" Response at 1. The Union argues that, consequently, its exceptions do not bear on any matter over which the Authority lacks jurisdiction. In further explanation, the Union states that "[t]he fact that this case was originally a removal does not permit the Authority to deprive the grievant of the statutory remedy under the Back Pay Act." Id. The Union also argues that the exceptions were timely filed.
B. The Agency
The Agency argues that, under section 7121(f) of the Statute, the Authority lacks jurisdiction over this case because the subject of the arbitration was a removal action under 5 U.S.C. § 7512. On the merits of the award, the Agency contends that the Back Pay Act does not require backpay in all instances of reinstatement after removal.
IV. Analysis and Conclusions
We find that the Authority is 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 removals. See, for example, U.S. Department of the Army, Army Reserve Personnel Center, St. Louis, Missouri and American Federat