American Federation of Government Employees, Local 171, Council of Prison Locals Council 33 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma (Agency)

[ v61 p454 ]

61 FLRA No. 86

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 171
COUNCIL OF PRISON LOCALS
COUNCIL 33
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
EL RENO, OKLAHOMA
(Agency)

0-AR-3983

_____

DECISION

January 25, 2006

_____

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 Ed W. Bankston 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 a motion to dismiss the Union's exceptions for lack of jurisdiction. The Authority issued an Order to Show Cause why the Union's exceptions should not be dismissed for lack of jurisdiction, and the Union filed a response.

      For the reasons set forth below, we conclude that we lack jurisdiction to review the Union's exceptions. Accordingly, we dismiss the Union's exceptions.

II.     Background and Arbitrator's Award

      After a prolonged absence due to a compensable, on-the-job injury, the grievant was removed from his position because the Agency determined that physical and medical limitations precluded him from safely performing the essential functions of his job. The Union filed a grievance alleging, among other things, that the Agency improperly relied on certain medical documentation in removing the grievant. The grievance was unresolved and proceeded to arbitration. The parties did not stipulate the issues and the Arbitrator framed the "main issue" as "[w]hether the grievant's removal was for just and sufficient cause such as to promote the efficiency of the service? If not, what is the proper remedy?" Award at 6. The Arbitrator also framed the following "threshold issues:"

Whether the Union properly and timely provided its witness list to the Agency?
Whether the lack of official time has compromised the Union's prosecution of the grievance?
Whether the Agency improperly accessed personal medical documents (CA-1s) to assess the grievant's medical condition, and thus facilitating his removal?
Whether the Agency violated Article 6 of the Master Agreement `by attempting to intimidate and coerce [the grievant] into signing [a] settlement agreement?
Whether the Agency violated Article 38 of the Master Agreement?

Id.

      As to the threshold issues, the Arbitrator found that the Union properly and timely provided its witness list to the Agency and that the Union was provided sufficient official time. The Arbitrator also found that the Agency did not improperly access the grievant's medical records. Finally, the Arbitrator found that the Agency did not violate the parties' agreement either by attempting to intimidate and coerce the grievant into signing a settlement agreement or by failing to accommodate the grievant's "handicapping condition." Id. at 27.

      Turning to the main issue of whether the grievant's removal was for just and sufficient cause, the Arbitrator considered the grievant's job description, which he found required "frequent and direct daily contact with inmates" and "exposure to potentially dangerous situations such as physical attack . . . ." Id. at 29. He also considered reports from the grievant's doctors, who recommended that the grievant have "[n]o direct contact [with] inmates" and found no indication that the grievant would "ever be able to return to his previous job description." Id. at 30. Based on the foregoing, the Arbitrator found that the Agency had just cause to remove the grievant, and he denied the grievance. [ v61 p455 ]

III.     Union's Exceptions

      The Union claims the award is deficient because the Arbitrator ignored public policy, denied the Union a fair hearing, relied on non-facts, and incorrectly concluded that the Agency had just and sufficient cause to remove the grievant.

IV.     Order to Show Cause and the Union's Response

      After the Union filed exceptions to the Arbitrator's award with the Authority, the Agency filed a motion to dismiss for lack of jurisdiction on the ground that the grievance concerns the grievant's removal, a matter over which the Authority has no jurisdiction. Thereafter, referencing the Agency's motion, the Authority's Case Control Office issued an order to show cause why the Union's exceptions should not be dismissed. In its response, the Union does not dispute that one of the issues before the Arbitrator was whether the Agency had just cause to terminate the grievant. Rather, the Union claims the Authority has jurisdiction to review the award because the removal "was not [the] only . . . issue" before the Arbitrator. Union's Response at 5. In this regard, the Union asserts that the grievance also alleged that the Agency harassed and intimidated the grievant and violated the grievant's rights under the Privacy Act, the Health Insurance Portability and Accountability Act (HIPAA), and certain government-wide rules and regulations. Id. at 3. According to the Union, the Arbitrator also addressed issues of official time. The Union acknowledges that the grievance sought to reinstate the grievant to his former job, but claims that it also sought other remedies.

V.      The Authority Lacks Jurisdiction To Review 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. The matters described in § 7121(f) include adverse actions, such as removals, which are covered under 5 U.S.C. § 4303 or § 7512. [*]  See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Det. Ctr., Miami, Fla., 57 FLRA 677, 678 (2002) (BOP, Miami). Arbitration awards resolving such 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., Fed. Aviation Admin., 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 one reviewable by the Merit Systems Protection Board (MSPB) and, on appeal, by the Federal Circuit. See BOP, Miami, 57 FLRA at 678.

      There is no dispute that one of the claims in arbitration concerned the grievant's removal, as the Arbitrator expressly framed the "main issue" as whether the grievant's removal was for just and sufficient cause. Award at 6. The grievant's removal constitutes an adverse action within the meaning of 5 U.S.C. § 7512. As such, we do not have jurisdiction to review the award insofar as it resolves the grievance over the removal.

      Further, the Authority has consistently refused to assert jurisdiction over additional issues resolved in arbitration where those issues were inextricably intertwined with underlying adverse actions within the meaning of 5 U.S.C. § 4303 or 7512. For example, the grievance in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Prison Camp, Alderson, W. Va., 47 FLRA 572 (1993) disputed a removal action and the agency's use of an employee's home duty status when removing the employee from a worksite pending an investigation of disciplinary charges. The agency in that case filed exceptions to the portion of the award concerning home d