[ v30 p1266 ]
The decision of the Authority follows:
30 FLRA NO. 138 30 FLRA 1266 29 JAN 1988 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 51, AFL-CIO Union and U.S. MINT, U.S. ASSAY OFFICE SAN FRANCISCO Agency Case No. 0-AR-1390 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator Donald H. Wollett. The Arbitrator determined that under the parties' collective bargaining agreement, issues concerning the propriety of a reduction-in-force (RIF) were not grievable or arbitrable. He also concluded that the RIF was not a pretext for racial discrimination. However, in order to remedy a violation by the Agency of a procedural requirement concerning notice to the Union of arbitrability allegations, the Arbitrator ordered the Agency to permit the Union and the grievants to pursue appeals with the Merit Systems Protection Board (MSPB) without objecting to such appeals on timeliness grounds. The exceptions were filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency excepts to the remedial portion of the award, arguing that it is contrary to law and that the Arbitrator exceeded his authority. The Union did not file an opposition to the Agency's exceptions. We conclude that the Arbitrator exceeded his authority by awarding a remedy after finding that the subject matter of the dispute was not grievable or arbitrable and that he lacked jurisdiction. Accordingly, we will modify the award to strike the remedy. II. Background and Arbitrator's Award This case arose as a result of a RIF at the Agency. The Union filed a grievance protesting the procedures followed by the Agency in implementing the RIF. The Union also alleged that the RIF was a pretext for racial discrimination. The grievance was submitted to arbitration. The Arbitrator found that the parties had provided for appeals of issues concerning employee RIF notices to the MSPB and that such matters were excluded from coverage under the parties' agreement. Award at 5. He also found that the Agency had not complied with a procedural requirement in the parties' negotiated grievance procedure that rejection of a grievance on the grounds of nonarbitrability must be served on the Union in writing at the step of the grievance procedure preceding arbitration. Award at 8-9. He concluded that the subject matter of the grievance was excluded from the grievance procedure. However, concerning the Agency's violation of the procedural requirement in the parties' agreement, the Arbitrator made inconsistent findings. He found that the Agency's procedural violation did not give him jurisdiction over the dispute, Award at 10. He also found that the lack of subject matter jurisdiction did not "adversely affect his authority to deal with the question of the (Agency's) compliance with Article 30 governing the procedural obligations of the parties under the grievance machinery." Award at 12 n.3. The Arbitrator concluded that the Agency's procedural violation required remedial relief. Award at 10. The Arbitrator further found that his conclusion that the subject matter of the grievance was not arbitrable did not preclude him from resolving the Union's allegation that the RIF was a pretext for racial discrimination. He found that an allegation of "discrimination within the meaning of 5 U.S.C. 2302(b) is either arbitrable under the grievance machinery or appealable to the MSPB, at the grievant's option." Award at 12. As to the merits of the Union's allegation, he concluded that there was insufficient evidence to establish racial discrimination. Award at 13-14. The Arbitrator dismissed all but two of the issues because they were not grievable or arbitrable. As to the two remaining issues, he first dismissed that part of the grievance alleging that the RIF was a pretext for racial discrimination. As a remedy for the Agency's violation of the parties' negotiated grievance procedure, the Arbitrator directed the Agency "to permit the Union and the other grievants to perfect and pursue their appeal rights to the (MSPB) without objection on any ground of timeliness . . . ." Award at 14-15. III. Exceptions The Agency contends that the Arbitrator exceeded his authority by: (1) assuming jurisdiction over ancillary issues after ruling that he did not have subject matter jurisdiction because the parties' agreement excludes RIF actions from grievance and arbitration; (2) ruling that the Agency must allow the Union to file an appeal with the MSPB without objection on any timeliness ground; and (3) finding that the Agency violated the negotiated grievance procedure because no legitimate issue of grievability or arbitrability existed. The Agency also alleges that by granting employees an appeal right before MSPB and by restricting an Agency's right before MSPB, the Arbitrator's award is contrary to law. IV. Analysis and Conclusions We find that the Arbitrator exceeded his authority. As noted, the threshold issue for resolution was whether the Agency's action in directing and implementing the RIF was arbitrable. The Arbitrator found that under the parties' agreement, questions concerning the propriety of the Agency's direction and its implementation of the RIF were not grievable or arbitrable. Award at 5, 9-10, 11. As noted above, the Arbitrator made inconsistent findings regarding the Agency's violation of a procedural requirement in the parties' agreement. He found that the Agency's failure to comply with one of the procedural requirements of the parties' negotiated grievance procedure did not give him jurisdiction over the subject matter, which the parties had excluded from his authority. Award at 10-11. However, he also found that the lack of subject matter jurisdiction did not preclude him from resolving the question of whether the Agency had complied with the procedural obligations of the parties under the grievance machinery. Award at 12 n.3. We conclude that the Arbitrator's authority over the nondiscrimination aspects of the grievance ended when he determined that the subject matter was excluded from coverage of the parties' agreement and that he was without jurisdiction in the matter. The Arbitrator's finding that the lack of subject matter jurisdiction did not preclude him from deciding the issue of the Agency's compliance with a procedural requirement of the parties' agreement is inconsistent. The issue of whether the Agency complied with the agreement's procedural requirements is limited to the issue of the RIF. Since the overall issue of the RIF was not grievable or arbitrable under the parties' agreement, the ancillary issues likewise were not grievable or arbitrable. Therefore, by awarding a remedy after finding that he was without jurisdiction to resolve the dispute, the Arbitrator exceeded his authority. See Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447, 451 (1986); American Federation of Government Employees, Local 547 and Tampa Veterans Administration Hospital, 19 FLRA 725, 727 (1985). We also agree with the Agency that the Arbitrator was without authority to confer any rights on employees or the Union, or to deprive the Agency of any rights, with respect to MSPB appeals. The rights of parties before the MSPB are for determination by the MSPB in its proceedings and not by an arbitrator in a grievance arbitration proceeding. Therefore, to the extent that the Arbitrator sought to confer any rights in MSPB proceedings on the Union or the grievants and restricted the rights of the Agency in such proceedings, he also exceeded his authority. V. Decision For the above reasons, the Arbitrator's award is modified to strike the remedy. 1 Issued, Washington, D.C.,January 29, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 In view of this decision, we find that it is not necessary to address the Agency's other arguments.