American Federation of Government Employees, Local 3809, Council of Prison Locals (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institute Big Spring, Big Spring, Texas (Agency)

[ v60 p521 ]

60 FLRA No. 105

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3809
COUNCIL OF PRISON LOCALS
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL
INSTITUTE BIG SPRING
BIG SPRING, TEXAS
(Agency)

0-AR-3892

_____

DECISION

December 29, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Rex H. Wiant filed by the Union under § 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 exceptions.

      For the reasons set forth below, we conclude that the Authority lacks jurisdiction over the Union's exceptions. Accordingly, the Union's exceptions are dismissed.

II.      Background and Arbitrator's Award

      The grievant, a senior correctional officer, was placed on an indefinite suspension stemming from a criminal indictment. The Arbitrator framed the issue as follows:

Did the Employer violate Article 30 when giving the Grievant an indefinite suspension because of a non-work incident on October 21, 2001?

Award at 2.

      In resolving the issue, the Arbitrator found that the Agency did not violate Article 30 when it exercised its discretion to place the grievant on an indefinite suspension. [n1]  As such, the Arbitrator denied the Union's grievance. Award at 7.

      On September 13, 2004, the Union filed exceptions contending that the Arbitrator's award was contrary to law, failed to resolve issues submitted to arbitration and was based on non-facts. Exceptions at 2, 3. On September 28, the Authority issued an Order to Show Cause as to why this matter should not be dismissed as it involves a matter specifically excluded from our review under § 7121(f) of the Statute. Accordingly, prior to addressing any issues raised in the exceptions, the Authority will first determine whether this grievance involves a matter specifically excluded from our review.

III.     The Union's Response to the Order to Show Cause  [n2] 

      The Union contends that the Arbitrator did not resolve all of the issues submitted to arbitration. Specifically, the Union alleges that:

The Agency failed to have reasonable grounds to suspend the grievant in violation of [the] Master Agreement, Article 30, section a and 5 U.S.C. 7513. (Grievance at 1)
Did [the grievant] undergo an unjustified and unwarranted personnel action in violation [of] 5 U.S.C. 706(2)(E)?
Eleven calender days had elapsed after the charges were dismissed on [the grievant] before he was reinstated by the Agency. [ v60 p522 ]
The exercise of discretion by the agency in refusing to make payment of back pay until the date of the suspension is not reasonable and is arbitrary and capricious 5 U.S.C. 706(2)(A). The action was unsupported by substantial evidence 5 U.S.C. 706(2)(E).

Union's Response at 3.

In conclusion, it argues that:

The FLRA has authority to hear the portions of the case and determine the matters not decided by the arbitrator in this case as they relate to whether the agency had reasonable grounds to take any action and whether the denial of the Complainant back pay was arbitrary and capricious. These issues are within the scope of the Authority's jurisdiction.

Id.

IV.      The Authority Lacks Jurisdiction to Resolve the Union's Exceptions

      Under § 7122(a) of the Statute, the Authority lacks jurisdiction to review an arbitration award "relating to a matter described in section 7121(f)" of the Statute. Matters described in § 7121(f) include serious adverse actions, such as suspensions for more than 14 days, which are covered under 5 U.S.C. § 4303 or § 7512. See Hill Air Force Base, 58 FLRA at 477 (Authority lacked jurisdiction over Agency exceptions relating to an indefinite suspension); United States DOJ, Fed. Bureau of Prisons, Fed. Det. Ctr., Miami, Fla., 57 FLRA 677, 678 (2002) (Bureau of Prisons). Arbitration awards resolving these matters are reviewable by the United States Court of Appeals for the Federal Circuit, rather than the Authority. See 5 U.S.C. § 7121(f) and § 7703. The Authority will determine that an award relates to a matter described in § 7121(f) when it resolves, or is inextricably intertwined with, a § 4303 or § 7512 matter. See United States Dep't of Transp., FAA, 57 FLRA 580, 581 (2001). In making that determination, the Authority looks not to the outcome of the award, but to whether the claim advanced in arbitration is reviewable by the Merit Systems Protection Board and, on appeal, by the Federal Circuit. See Bureau of Prisons, 57 FLRA at 678; United States Dep't of Agric., Forest Serv., N. Region, Idaho Panhandle Nat'l Forests, 49 FLRA 1582, 1587-88 (1994); Panama Canal Comm'n, 49 FLRA 1398, 1402 (1994).

      Applying this precedent, we conclude that the award, in resolving a claim that the Agency violated the parties' agreement by placing the grievant on an indefinite suspension, relates to a matter described in § 7121(f) of the Statute. See Bureau of Prisons, 57 FLRA at 678. Moreover, with respect to the other issues raised by the Union, i.e., that the Agency committed an unwarranted and unjustified personnel action in placing the grievant on an indefinite suspension and that the grievant should have been awarded back pay because of the Agency's failure to immediately reinstate the grievant after his criminal indictment was dismissed, these issues all relate either directly to the indefinite suspension or, as they relate to the appropriate monetary relief sought by the grievant for imposition of this indefinite suspension, are otherwise inextricably intertwined with the indefinite suspension. See AFGE, Local 2004, 59 FLRA 572, 573 (2004). Accordingly, we conclude that the Authority lacks jurisdiction to review the Union's exceptions.

V.      Decision

      The Union's exceptions are dismissed.



Footnote # 1 for 60 FLRA No. 105 - Authority's Decision

   Article 30 reads:

The Employer retains the right to respond to an alleged offense by an employee which may adversely affect the Employer's confidence in the employee or the security or orderly operation of the institution. The Employer may elect to reassign the employee