United States Department of Agriculture, Food Safety and Inspection Service (Agency) and American Federation of Government Employees, National Joint Council of Food Inspection Locals (Union)

[ v62 p107 ]

62 FLRA No. 29

UNITED STATES
DEPARTMENT OF AGRICULTURE
FOOD SAFETY AND INSPECTION SERVICE
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL JOINT COUNCIL OF FOOD
INSPECTION LOCALS
(Union)

0-AR-4162

_____

DECISION

June 20, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I.      Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Kenneth Cloke 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 exceptions.

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

II.     Background and Arbitrator's Award

      The grievant was issued a Decision Letter suspending him for "two (2) pay periods" for the failure to comply with a "[d]isciplinary [a]greement[.]" Award at 7. The Union filed a grievance over the suspension and, when the grievance was not resolved, it was submitted to arbitration.

      As relevant here, the Arbitrator found that the grievance was arbitrable, and on the merits, he sustained the grievance. See Award at 11. Among other things, the Arbitrator directed the Agency to withdraw the suspension. See id. at 12.

      The Agency filed exceptions contending that the award is deficient on several grounds, including the claim that by failing to consider pertinent and material evidence, the Arbitrator denied the Agency a fair hearing. In its opposition to the Agency's exceptions, the Union asserts that the Authority does not have jurisdiction over the exceptions because the matter relates to a suspension of more than 14 days. See Opposition at 1-2.

III.     The Agency's Response to the Order to Show Cause

      The Authority issued an Order directing the Agency to show cause why its exceptions should not be dismissed because this case involves a matter specifically excluded from our review under § 7121(f) of the Statute. In its Response to the Authority's Order, the Agency contends the Authority has jurisdiction over the exceptions because the Agency did not "file an exception regarding the alleged adverse action." Response at 2 (emphasis omitted).

IV.      The Authority Lacks Jurisdiction To Resolve the Agency'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 serious adverse actions, such as suspensions for more than 14 days, which are covered under 5 U.S.C. § 4303 or § 7512. [n*]  United States Dep't of the Air Force, Hill Air Force Base, Utah, 58 FLRA 476, 477 (2003) (Chairman Cabaniss dissenting on other grounds); United States Dep't of Justice, 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., 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 reviewable by the Merit Systems Protection Board and, on appeal, by the Federal Circuit. See Bureau of Prisons, 57 FLRA at 678.

      [ v62 p108 ] We reject the Agency's argument that the Authority has jurisdiction over the exceptions because the Agency did not "file an exception regarding the alleged adverse action." Response at 2 (emphasis omitted). The award resolved a claim over the Agency's suspension of the grievant fo