United States, Department of Commerce, Patent and Trademark Office, Arlington, Virginia (Agency) and Patent Office, Professional Association (Union)

[ v61 p476 ]

61 FLRA No. 90

UNITED STATES
DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
ARLINGTON, VIRGINIA
(Agency)

and

PATENT OFFICE
PROFESSIONAL ASSOCIATION
(Union)

0-AR-3953

_____

ORDER DISMISSING EXCEPTION

January 31, 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 an exception to an award of Arbitrator Jerome T. Barrett filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exception. [n1] 

      An employee grieved his removal for unacceptable performance. The Arbitrator sustained the grievance, finding that the Agency had impermissibly discriminated against the grievant on the basis of disability. The Agency filed an exception to the award. We dismiss the exception for lack of jurisdiction under § 7122(a) of the Statute.

II.      Background and Arbitrator's Award

      The Agency removed the grievant for unacceptable performance under 5 U.S.C. § 4303. The grievant filed a grievance disputing the removal and raising an affirmative defense of disability discrimination. The Arbitrator ruled that the Agency had failed to reasonably accommodate the grievant and that, consequently, the Agency had discriminated against the grievant on the basis of disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791. The Arbitrator sustained the grievance and ordered the grievant reinstated with backpay.

III.      Positions of the Parties

A.      Jurisdictional Issue

1.      Agency

      The Agency acknowledges that under § 7122(a) of the Statute, the Authority does not have jurisdiction to resolve exceptions to an award relating to a matter described in § 7121(f). [n2]  The Agency also acknowledges that the matters described in § 7121(f) include removals for unacceptable performance under 5 U.S.C. § 4303. Nevertheless, the Agency contends that the Authority has jurisdiction to resolve its exception because, although this case involves a removal for unacceptable performance, this case is a "mixed case" that, according to the Agency, is covered exclusively under § 7121(d) of the Statute and does not involve a matter described in § 7121(f). [n3]  The Agency asserts that because § 7121(f) does not apply here, the Authority has jurisdiction under § 7122(a) to resolve its exception.

      In support of its position, the Agency relies on the court's decision in AFGE Local 2052 v. Reno, 992 F.2d 331 (D.C. Cir. 1993) (AFGE Local 2052). The Agency also maintains that if its exception were dismissed, it would not have a forum to appeal an arbitrator's award in a mixed case. In this regard, the Agency argues that it "is inconceivable that Congress would have intended that the Agency have no venue in which [ v61 p477 ] to appeal an arbitrator's award in a mixed case." Exception at 7 (emphasis in original).

      Alternatively, the Agency contends that the matter in dispute is not a matter described in § 7121(f) because the parties do not have a collective bargaining agreement and, therefore, this matter could not have been raised under a negotiated grievance procedure.

2.     Union

      The Union contends that the Authority does not have jurisdiction to resolve the Agency's exception. The Union asserts that "[r]egardless of whether the [grievant's] removal is alleged to have been discriminatory, it . . . at least constitutes `an award relating to a matter described in section 7121(f)' to which exceptions cannot be filed." Opposition at 2 (citing § 7122(a) (emphasis added by the Union)). The Union claims that the Agency's position would produce the result, directly contrary to the Authority's Regulations, of granting the Authority jurisdiction over certain arbitration awards relating to matters covered under §§ 4303 and 7512, solely because issues of employment discrimination were raised.

      The Union further contends that Congress could not have intended the Authority to have jurisdiction to resolve exceptions to arbitrators' awards in mixed cases because the Authority has no special expertise in such cases. The Union also contends that the Agency's reliance on AFGE Local 2052 is misplaced.

      With respect to the Agency's alternative argument that the parties do not have a negotiated grievance procedure because they do not have a collective bargaining agreement, the Union contends that this argument should be rejected on the basis of the Authority's recent decision in United States Dep't of Commerce, Patent and Trademark Office, Arlington, Va., 60 FLRA 869 (2005) (PTO). According to the Union, in PTO the Authority confirmed that the parties have a collective bargaining agreement because it denied the Agency's exceptions to an award in which an arbitrator held that the parties have a collective bargaining agreement.

B.      Merits

      The Agency contends that the award is contrary to the Rehabilitation Act because the Arbitrator based his finding of disability discrimination on a failure to provide a retroactive accommodation, which is not required under the Act. The Union contends that the Arbitrator's finding that the Agency failed to reasonably accommodate the grievant is not deficient because it was not based on a retroactive accommodation. Alternatively, the Union contends that the award is not deficient because the Arbitrator properly found that the Agency failed to consider whether the grievant's medical condition contributed to, or was the cause of, his unacceptable performance.

IV.      Analysis and Conclusions

      Under § 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to an award "relating to" a matter described in § 7121(f) of the Statute. Matters described in § 7121(f) include serious adverse actions, such as removals, that are covered under 5 U.S.C. § 4303 or § 7512 and are appealable to the MSPB and reviewable by the United States Court of Appeals for the Federal Circuit. See United States Dep't of the Treasury, United States Customs Serv., 57 FLRA 805, 806 (2002) (Dep't of the Treasury).

      The phrase "relating to" in § 7122(a) is not defined in the Statute. The Authority has held that the phrase "relating to" applies both to the matters described in § 7121(f) as well as other matters that are connected to those matters explicitly set forth. AFGE Local 2986, 51 FLRA 1549, 1553 (1996) (Member Armendariz dissenting as to other matters). Specifically, the Authority has concluded that under § 7122(a), it lacks jurisdiction to resolve exceptions to "the `pure' section 4303 or 7512 matter[]" as well as to exceptions to an award relating to a matter that "is inextricably intertwined with a section 4303 or 7512 matter." Id. at 1555.

      The Authority has stated that by declining jurisdiction over awards relating to the matters described in § 7121(f) as well as to the matters inextricably intertwined with them, it ensures consistency and uniformity of process and discourages forum shopping, as Congress intended. See id. at 1554. In addition, the Authority noted that the delineation between awards that are reviewable by the Authority, and those that are not, [ v61 p478 ] advances the desirable policy objective of avoiding the multiplicity of litigation over one claim that might result if aspects of the same claim were to be reviewed in more than one forum. See id.

      The Authority has not previously been presented with the argument presented by the Agency here; namely, that the Authority has jurisdiction over exceptions to an award involving a "mixed case" even though it does not have jurisdiction over exceptions to other awards relating to matters that are appealable to the MSPB. For the reasons that follow, we reject this argument and dismiss the Agency's exception for lack of jurisdiction under § 7122(a).

      As an initial matter, we agree with the Agency that a "mixed case" is not a "`pure' section 4303 or 7512 matter[,]" as the Authority has used that term, so as to constitute a matter specifically referenced in § 7121(f). See id. at 1555. However, as stated above, the Authority has consistently held that it lacks jurisdiction under § 7122(a) to resolve exceptions not only to awards relating to "pure" § 4303 or § 7512 matters, but also to awards relating to matters that are "inextricably intertwined with a section 4303 or 7512 matter." Id. The Authority has found several matters to be inextricably intertwined with a § 4303 or § 7512 matter. See, e.g., AFGE Local 2004, 59 FLRA 572, 573 (2004) (remedial relief in connection with § 7121(f) matters is inextricably intertwined with those matters); United States Dep't of the Treasury, United States Customs Serv., 57 FLRA 805, 806-07 (2002) (issue of whether the grievant was a probationer was inextricably intertwined with the grievant's removal); United States Dep't of Transportation, Fed. Aviation Admin., 57 FLRA 580, 581 (2001) (FAA) (awards enforcing settlement agreements relating to § 7121(f) matters are inextricably intertwined with those matters); United States Dep't of Veterans Affairs Med. Ctr., Newington, Conn., 53 FLRA 440, 443 (1997) (award relating to a charge of absence without leave was inextricably intertwined with the grievant's removal).

      There is no doubt that the matter in this case--the grievant's removal for unacceptable performance under § 4303 and the grievant's affirmative defense of disability discrimination--is a matter that is inextricably intertwined with the grievant's removal under § 4303. [n4]  Accordingly, based on the text of § 7122(a) of the Statute and the application of Authority precedent interpreting that statutory provision, the Authority lacks jurisdiction over the Agency's exception to the award in this case. See also 5 C.F.R. § 2425.3(b)(1) ("The Authority will not consider an exception with respect to an award relating to . . . [a]n action based on unacceptable performance covered under 5 U.S.C. 4303[.]").  [n5] 

      The Agency's reliance on the court's decision in AFGE Local 2052 is misplaced. The court's decision addressed the judicial review aspects of the relevant statutory provisions before it. The court ruled that "in a mixed case an employee who chooses the negotiated grievance procedure must take the arbitrator's decision to the MSPB before seeking judicial review." AFGE Local 2052, 992 F.2d at 335. In so doing, the court rejected the union's argument that judicial review was governed by § 7121(f). The court stated that "[a] close reading of § 7121 in its entirety . . . makes clear that subsection (f) does not apply to a mixed case." Id. at 333.

      However, the meaning and application of § 7122(a) of the Statute, which is the controlling statutory provision for purposes of determining the Authority's jurisdiction over exceptions to arbitrators' awards, was not an issue before the court in AFGE Local 2052. Accordingly, the court's decision did not address, let alone resolve, whether exceptions to an arbitrator's award in a mixed case relate to a matter that is inextricably intertwined with a section 4303 or 7512 matter, so that the Authority lacks jurisdiction under § 7122(a) of the Statute to resolve the exceptions.

      We also reject the Agency's argument that it "is inconceivable that Congress would have intended that the Agency have no venue in which to appeal an arbitrator's award in a mixed case." Exception at 7 (emphasis in original). As a general matter, the Authority has previously recognized that, under the statutory scheme enacted by Congress, there may be some awards that are not reviewable at all. See VAMC, 53 FLRA at 443 ("We acknowledge that there may be cases where no forum has jurisdiction to review an arbitrator's award."). In addition, with specific reference to mixed cases, Congress [ v61 p479 ] has made it clear that employees have certain avenues of appeal that are not available to agencies. For example, as acknowledged by the Agency, only individuals, not agencies, may petition the Equal Employment Opportunity Commission to consider a final decision from the MSPB on a mixed-case appeal or on appeal of a final decision on a mixed-case complaint. See 29 C.F.R. § 1614.303(a). Similarly, only individuals, n