47:0572(49)AR - - Justice, Federal Bureau of Prisons, Federal Prison Camp, Alderson, WV and AFGE Local 1494 - - 1993 FLRAdec AR - - v47 p572



[ v47 p572 ]
47:0572(49)AR
The decision of the Authority follows:


47 FLRA No. 49

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL PRISON CAMP

ALDERSON, WEST VIRGINIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1494

(Union)

0-AR-2380

_____

ORDER DISMISSING EXCEPTIONS

May 4, 1993

_____

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 Michael E. Zobrak filed by the Agency 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 Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance contesting an employee's removal and ordered the Agency to reduce the discipline to a 60-day suspension. The Arbitrator also ordered the Agency to cease and desist from using home duty status when removing an employee from a worksite pending the Agency's investigation of disciplinary charges. The Agency has filed exceptions to the portion of the award ordering it to cease and desist from placing employees in home duty status. For the reasons stated below, we find that we are without jurisdiction under section 7122(a) of the Statute to review the Agency's exceptions.

II. Background and Arbitrator's Award

When the Agency learned that the grievant, a corrections officer, had been found guilty of shoplifting, it placed the grievant in home duty status pending its investigation of the matter. Thereafter, the Agency removed the grievant for off-duty criminal conduct and for failing to report her arrest. The grievant filed a grievance contesting her placement in home duty status and her removal.

When the grievance was not resolved, it was submitted to arbitration on the following issues, as framed by the Arbitrator:

[D]id the Agency violate the Agreement when it assigned the Grievant to home duty status and did the Agency have just and sufficient cause to remove the Grievant and if not, what should the remedy be?

Award at 3.

Before the Arbitrator, the Union argued that the grievant's home duty assignment violated the Agency's "personnel practices" and that this violation constituted "harmful error[] and [a] prohibited personnel practice[] demanding a reversal of the Agency's [removal] decision." Id. at 8. The Arbitrator determined that the issue of the grievant's home duty assignment:

deals with the Agency's right to assign the Grievant to home duty status and, if the Agency's directive was improper, what impact does this have on the Grievant's discharge?

Id. at 9. In response to this issue, the Arbitrator found that the grievant's home duty assignment was "separate and apart from the matters which led to the Grievant's discharge" and concluded that "the placement of the Grievant in home duty status ha[d] no bearing on the outcome related to the Grievant's discharge." Id. The Arbitrator also found, however, based on a previous award by a different arbitrator, that placing an employee in home duty status pending investigation of charges was improper. Accordingly, the Arbitrator ordered the Agency "to cease and desist from using home duty status" in these circumstances. Id. at 10, 15.

With regard to the grievant's removal, the Arbitrator found that the removal was "too harsh and punitive" and ordered the Agency to reduce the removal to a 60-day suspension. Id. at 14.

III. Positions of the Parties

The Agency excepts only to the portion of the award which orders the Agency to cease and desist from using home duty status. The Agency claims that this portion of the Arbitrator's award: (1) interferes with management's right to assign work under the Statute; (2) is contrary to Government-wide regulation; and (3) is deficient because the Arbitrator exceeded his authority.

The Union maintains that the award draws its essence from the contract, does not interfere with management's rights, and is not contrary to law or regulation.

IV. Analysis and Conclusions

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

The matter 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 Air Force, Williams Air Force Base, Chandler, Arizona and American Federation of Government Employees, Local 1776, 35 FLRA 1292 (1990)(Williams Air Force Base). Review of awards relating to such matters 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.

We do not agree with the Agency that the Arbitrator's decision on the issue of the grievant's home duty assignment should be treated separately from his award on the grievant's removal and is therefore subject to the filing of exceptions under section 7122(a) of the Statute. Instead, we find that the Arbitrator's decision on the grievant's home duty assignment is "related to," within the meaning of section 7122(a) of the Statute, the award regarding the grievant's removal. See U.S. Department of the Treasury, Internal Revenue Service, Phoenix District and National Treasury Employees Union, Chapter 33, 43 FLRA 686, 691 (1991); Williams Air Force Base, 35 FLRA at 1293.

In this connection, the issue of the grievant's home duty assignment was clearly linked by the Union to the issue of the grievant's removal. According to the Arbitrator, the Union claimed that the grievant's home duty assignment constituted harmful error and a prohibited personnel practice which required "reversal of the Agency's [removal] decision." Award at 8. Indeed, according to the Arbitrator, the home duty assignment issue was raised by the Union as "an affirmative defense" to the removal. Id. Consistent with the Union's position, the Arbitrator stated that an issue before him was: "[W]hat impact does [the home duty assignment] have on the Grievant's discharge?" Id. at 9. The Arbitrator determined, in this regard, that the home duty assignment had "no bearing on the outcome" of the grievant's discharge. Id.

Based on the record as a whole, we find that the Arbitrator's decision on the grievant's home duty assignment is related to the award regarding the grievant's removal, a matter under 5 U.S.C. &§ 7512. Accordingly, exceptions to the award, insofar as it relates to either the removal or the home duty assignment, may not be filed with the Authority under section 7122(a) of the Statute. See U.S. Department of the Navy, Navy Resale Activity, Guam and American Federation of Government Employees, Local 1689, 40 FLRA 30, 32 (1991), reconsideration denied, 40 FLRA 515, 518 (1991). Therefore, we are without jurisdiction to review the Agency's exceptions a