51:1612(132)AR - - AFGE Local 2094 & VA Medical Center, New York, NY - - 1996 FLRAdec AR - - v51 p1612
[ v51 p1612 ]
The decision of the Authority follows:
51 FLRA No. 132
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
NEW YORK, NEW YORK
ORDER DISMISSING EXCEPTION
July 24, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Joseph M. Rich 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 Regulations. The Agency filed an opposition to the Union's exception.
The Arbitrator ruled that the Agency breached the agreement settling the grievance over the grievant's removal and reinstituted certain portions of the settlement agreement.
We conclude that we lack jurisdiction over the exception under section 7122(a) of the Statute. Accordingly, we dismiss the Union's exception.
II. Arbitrator's Award
In July 1991, the Agency removed the grievant(1) for misconduct, and the grievant filed a grievance over the removal. Prior to an arbitration hearing, the parties settled the grievance. Pursuant to the settlement agreement, the Agency gave the grievant a temporary appointment, effective December 29, 1991, for a period not to exceed 1 year. The Agency also agreed that, on or before the expiration of the appointment, the Agency would give good faith consideration to appointing the grievant to a permanent position. The Agency renewed the grievant's temporary appointment for 1 year, but in December 1993, the grievant's appointment was not renewed, and he was terminated.
The grievant claimed that the Agency breached the settlement agreement. The Arbitrator ruled that the Agency breached the settlement agreement, and he reinstituted for a 1-year period the provision that the Agency would give good faith consideration to appointing the grievant to a permanent position. He also ordered the Agency to reinstate provisions for confidentiality and expungement of the grievant's record. The Arbitrator refused to award any backpay because he was uncertain if the grievant would have been permanently appointed even if the Agency had complied with the settlement agreement.
III. Positions of the Parties
The Union contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator failed to award the grievant backpay.
The Agency contends that the award is not deficient because the Arbitrator did not know whether the grievant would have been permanently appointed if the Agency had complied with the settlement agreement.(2)
IV. Analysis and Conclusions
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 matters described in section 7121(f) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters which arise under other personnel systems.(3) The award in this case concerns the breach of an agreement settling the grievant's removal, a matter covered under section 7512. Accordingly, although not raised by the parties, a jurisdictional issue is presented concerning whether the Arbitrator's award is "an award relating to a matter described in section 7121(f)."
Under section 7121(e)(1) of the Statute, bargaining unit employees in the general Federal civil service have an option. These employees can either:
--file a grievance over the matter under a negotiated grievance procedure (if the matter has not been excluded); or
--appeal the matter to the Merit Systems Protection Board (MSPB) (if the employee is within the MSPB's jurisdiction).
In addition to providing this option, Congress acted to promote consistency and uniformity of process between MSPB appeals and arbitration and to discourage forum shopping. H. Rep. No. 95-1717, 95th Cong., 2d Sess. 157 (1978) reprinted in 1978 U.S.C.C.A.N. (92 Stat.) 2891. Thus, under section 7121(e)(2) of the Statute, arbitrators resolving these matters must apply the same statutorily prescribed standards codified in 5 U.S.C. § 7701(c) that would have been applied by the MSPB if the matter had been appealed to the MSPB.
Congress also provided for judicial review of the award in accordance with the provisions of 5 U.S.C. § 7703, which pertain to MSPB decisions. Thus, under section 7121(f) of the Statute, if an employee elects to raise the matter under the negotiated grievance procedure, the arbitrator's award is subject to judicial review in the same manner and under the same conditions as if the award were the decision of the MSPB. As explained by the Senate Committee on Governmental Affairs,
[t]he provision for judicial review is intended to assure conformity between the decisions of arbitrators with those of the Merit Systems Protection Board.
S. Rep. No. 95-969, 95th Cong. 2d Sess. 111 (1978) reprinted in 1978 U.S.C.C.A.N. (92 Stat.) 2833. In section 7122(a), Congress correspondingly denied the Authority jurisdiction under section 7122(a) over awards relating to these matters, which the Federal courts of appeals (now exclusively the U.S. Court of Appeals for the Federal Circuit) would review.
As a result of this statutory scheme, we will dismiss for lack of jurisdiction exceptions to awards that are a substitute for a decision of the MSPB and are reviewable by the U.S. Court of Appeals for the Federal Circuit. For the following reasons, we conclude that an arbitration award resolving an alleged breach of a settlement agreement resolving a removal is a substitute for a decision of the MSPB.
In general, when an employee has elected to appeal a matter covered under section 4303 or section 7512 to the MSPB, the parties may agree to settle the appeal. Under the MSPB's regulations, a settlement agreement is a final and binding resolution of the appeal, and the judge will dismiss the appeal with prejudice. 5 C.F.R. § 1201.41(c). If the parties offer the agreement for inclusion in the record and the judge approves the agreement, it will be made part of the record, and the MSPB will retain jurisdiction to enforce the settlement agreement. If the agreement is not entered into the record, the MSPB will not retain jurisdiction to enforce the settlement agreement. Id. Thus, in cases in which a settlement agreement has been entered into the record, the MSPB will issue a compliance and enforcement decision resolving allegations that the agreement was breached. E.g., Richardson v. EPA, 5 MSPR 248 (1981). Although the enforcement action, itself, is not a matter expressly covered under section 4303 or section 7512, King v. Reid, 59 F.3d 1215, 1218 (Fed. Cir. 1995), the compliance action is viewed as "inextricably linked" to the original personnel action that was dismissed as a result of the settlement agreement and is reviewable by the U.S. Court of Appeals for the Federal Circuit under the provisions of section 7703. Amin v. MSPB, 951 F.2d 1247, 1253 (Fed. Cir. 1991).
If an employee chooses to file a grievance over a removal rather than appeal the removal to the MSPB, the eventual arbitration award is a substitute for a decision of the MSPB. Similarly, when an employee settles a dispute over the removal, and there is an alleged breach of that settlement, the award resolving the breach allegation is a substitute for the MSPB proceeding described in the preceding paragraph. It follows that an arbitration award resolving allegations of a breach of that settlement agreement constitutes an award "relating to a matter described in section 7121(f)" within the meaning 7122(a) of the Statute.(4) Accord U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, 49 FLRA 982 (1994); U.S. Army Armament Research, Development, and Engineering Center (ARDEC), Dover, New Jersey and National Federation of Federal Employees (NFFE), Local 1437, 24 FLRA 837 (1986).
In this case, the grievant was removed under section 7512 and settled the grievance over his removal. Consequently, the Arbitrator's award resolving the grievance over an alleged breach of the settlement agreement is a substitute for an MSPB decision on a petition for enforcement and constitutes an award relating to a matter described in section 7121(f). Accordingly, we dismiss the Union's exception for lack of jurisdiction.(5)
The Union's exception is dismissed.
(If blank, the decision does not have footnotes.)
1. There is no basis on which to conclude that the grievant is other than a nonprobationary, competitive service employee.
2. The Agency also contends that the Union failed to properly serve its exception by certified mail or personal delivery as required by section 2429.27(b) of the Authority's Regulations. The Agency is correct that the Union's service by regular mail does not comply with section 2429.27(b). However, the Agency does not claim, and it is not apparent, that the Agency was prejudiced by the regular mail service. Accordingly, we take no action with respect to the deficiency. Federal Employees Metal Trades Council, Local 127 and U.S. Department of the Navy, Mare Island Naval Shipyard, Mare Island, California, 51 FLRA 1259, 1261 (1996).
3. 5 U.S.C. § 4303 covers removals and reductions-in-grade for unacceptable performance and 5 U.S.C. § 7512 covers removals, suspensions for more than 14 days, reductions either in grade or pay, and furloughs for 30 days or less.
4. There is no requirement that arbitrators apply the same procedural process as the MSPB. Local 2578, AFGE v. GSA, 711 F.2d 261, 264 (D.C. Cir. 1983) ("[N]othing in the CSRA requires that arbitration and MSPB actions alw