49:1482(131)AR - - AFGE, Local 3529 and DOD, Defense Contract Audit Agency, Central Region - - 1994 FLRAdec AR - - v49 p1482
[ v49 p1482 ]
The decision of the Authority follows:
49 FLRA No. 131
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
ORDER DISMISSING EXCEPTIONS
June 30, 1994
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Thomas A. Cipolla filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Agency removed the grievant from the Federal service for failure to accept a management-directed reassignment. When the Agency denied the grievant severance pay, she filed a grievance disputing the denial. The Arbitrator denied the grievance. We conclude that the award relates to the grievant's removal and that, consequently, we are without jurisdiction to resolve the Union's exceptions. Accordingly, we will dismiss the exceptions.
II. Background and Arbitrator's Award
The grievant was a GS-12 auditor with a duty station at Hazlewood, Missouri, when she was notified on October 22, 1992, that she was being reassigned to Fort Worth, Texas, effective December 6, 1992. By letter dated November 13, 1992, the grievant declined to accept the reassignment. By letter dated December 16, 1992, the grievant was removed from the Federal service for refusing to accept a management-directed reassignment. The grievant filed an appeal of her removal with the Merit Systems Protection Board (MSPB), and the MSPB affirmed the removal. In conjunction with her removal, the grievant requested severance pay. When the Agency denied the grievant's request for severance pay, the grievant filed a grievance disputing the denial. The grievant also asserted before the MSPB that the Agency improperly denied her request for severance pay. However, the MSPB ruled that the denial of severance pay to the grievant was a matter over which it had no jurisdiction. The grievance was not settled and was submitted to arbitration on the issue of whether the grievant was entitled to severance pay.
The Arbitrator noted that under 5 U.S.C. § 5595 and 5 C.F.R. part 550, subpart G, an employee is entitled to severance pay when the employee is separated involuntarily. He noted further that, by definition, a separation is "involuntary" when an employee is separated for declining to accept reassignment outside the commuting area "if the employee's position description or other written agreement does not provide for such a reassignment." Award at 4 (quoting 5 C.F.R. § 550.703). The Arbitrator found that the job descriptions for the grievant's positions during her entire tenure with the Agency, including, in particular, her position description at the time she was reassigned, "contained language which provided for reassignment outside of her commuting area." Id. at 14. Consequently, he ruled that the grievant's removal was not an involuntary separation and that, therefore, the grievant was not entitled to severance pay under applicable law and regulation. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Whether the Authority Has Jurisdiction
On November 19, 1993, the Authority's Case Control Office issued a notice to the Union to show cause why its exceptions should not be dismissed because the Arbitrator's award related to the grievant's removal. In reply, the Union contends that the award does not relate to the grievant's removal. The Union maintains that the award relates solely to the grievant's entitlement to severance pay. The Union emphasizes that the issue of the grievant's removal was appealed to the MSPB and that the MSPB declined jurisdiction on the issue of severance pay. The Union asserts that the matters described in section 7121(f), over which the Authority has no jurisdiction, are the actual adverse actions listed in 5 U.S.C. § 7512 or the performance-based actions listed in 5 U.S.C. § 4303. In the Union's view, a matter must be subject to the parallel jurisdiction of the MSPB in order for the Authority to be deprived of jurisdiction to review an award relating to that matter.
The Agency contends that the Union's exceptions should be dismissed because the award clearly relates to the grievant's removal. The Agency argues that the denial of jurisdiction to the Authority is broader than awards over the matters described in section 7121(f). The Agency maintains that section 7122(a) states, and the Authority has consistently applied section 7122(a) to provide, that the Authority is deprived of jurisdiction over awards that relate to the matters described in section 7121(f), in addition to awards specifically concerning those matters. In support, the Agency cites U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Alderson, West Virginia and American Federation of Government Employees, Local 1494, 47 FLRA 572 (1993) (Federal Prison Camp), in which the Authority dismissed exceptions to an award ordering the agency to cease placing employees in home duty status. The Agency maintains that that decision, which found that the award was related to the grievant's removal, was premised on the Authority's conclusion that the issue of the grievant's placement on home duty was clearly linked by the Union to the issue of the grievant's subsequent removal. The Agency claims that the issue of the grievant's entitlement to severance pay similarly was linked by the Union to the grievant's removal and that, therefore, the award concerning severance pay relates to the removal. Thus, the Agency asserts the exceptions should be dismissed for lack of jurisdiction.
B. Whether the Award is Deficient
The Union contends that the award is based on a nonfact and is contrary to law and regulation. The Union argues that the Arbitrator erroneously stated that all the auditors that testified, other than the grievant, had signed a letter indicating that they were subject to reassignment outside the commuting area. The Union maintains that this error was central to the award because the Arbitrator incorrectly inferred that the grievant's failure to sign such a letter was an aberration for which the Agency should not be faulted. The Union also argues that the award is contrary to law and regulation in that the Arbitrator should not have enforced the mobility provision of the grievant's position description because she was not provided a copy of the description containing the provision when she was initially appointed to the Federal service and was not advised that she was subject to reassignment outside the commuting area.
The Agency disputes that the award is deficient. The Agency argues that the Arbitrator did not make any inference about the letter pertaining to the Agency's rotation policy and that, in any event, the letter was not central to the award. The Agency also argues that the Arbitrator properly applied 5 U.S.C. § 5595 and 5 C.F.R. § 550.703 when he found that the existence of a reassignment provision in the grievant's position descriptions was controlling whether or not the descriptions were provided to her.
IV. Analysis and Conclusions
We conclude that we are without jurisdiction to review the Union's exceptions.
Section 7122(a) of the Statute pertinently provides, as follows:
Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).
As the Authority has noted in numerous cases with respect to the general Federal civil service, the matters described in section 7121(f) are those matters covered by 5 U.S.C. § 7512 and § 4303. Section 7512 covers removals, suspensions for more than 14 days, reductions either in pay or grade, and furloughs for 30 days or less. Section 4303 covers removals or demotions for unacceptable performance. Review of awards relating to these matters may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703.
In addition to dismissing exceptions to awards directly resolving the merits of a serious adverse action grievance controlled by section 7512 or a performance-based action grievance controlled by section 4303, the Authority also has dismissed exceptions to awards resolving issues related to the serious adverse action or performance-based action. Thus, the Authority has dismissed exceptions to awards pertaining to issues that were deemed "inseparable[,]" or not "separate and distinct[,]" from the serious adverse action or performance-based action, itself, or to issues that were "inherently related" to such matters. U.S. Department of the Treasury, Internal Revenue Service, Phoenix District and National Treasury Employees Union, Chapter 33, 43 FLRA 686, 691 (1991) (awards of fees and expenses resulting from arbitrations involving matters covered by section 7121(f) "are inherently related to such matters"); American Federation of Government Employees, Local 3627 and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region IV, 31 FLRA 1178, 1180 (1988) (arbitrator resolved grievances over a short-term suspension and a subsequent removal for continuing acts of insubordination; Authority determined that suspension was an "inseparable" part of the removal); U.S. Army Armament Research, Development, and Engineering Center (ARDEC), Dover, New Jersey and National Federation of Federal Employees (NFFE), Local 1437, 24 FLRA 837, 839 (1986) (award interpreting and applying agreement settling the issue of the grievant's removal was not "separate and distinct" from the issue of the removal); Veterans Administration Medical Center, Hines, Illinois and Illinois Nurses Association, Hines Local Unit, 20 FLRA 510, 511 (1985) (Illinois Nurses Association) (awards of attorney fees by an arbitrator in supplement to an award relating to a matter described in section 7121(f) is not "separate and distinct" from the award resolving the section 7121(f) matter).
In U.S. Army Missile Command and American Federation of Government Employees, AFL-CIO, Local 1858, 28 FLRA 11 (1987), the Authority also dismissed exceptions to an award pertaining to a performance appraisal because the performance appraisal was the basis for the grievant's subsequent removal for unacceptable performance. In addition, as noted by the Agency, in Federal Prison Camp, we dismissed exceptions to an award pertaining to an issue that the Union "linked" to the grievant's removal. 47 FLRA at 574. We also dismissed the exceptions in U.S. Department of the Navy, Navy Resale Activity, Guam and American Federation of Government Employees, Local 1689, 40 FLRA 30 (1991). In that case, the arbitrator denied the grievance over the grievant's removal, but rescinded the agency's action of barring the employee from the naval station and awarded the grievant $500 in lieu of damages for lost wages from a job at a civilian restaurant located on the naval station. We dismissed the agency's exceptions to the portion of the award rescinding its debarment of the grievant and awarding him damages. We found that the debarment and the award of damages related to the removal of the grievant.
Examining the plain language of section 7122(a) and its interpretation and application by the Authority, we agree with the Agency that the award relates to the grievant's removal. The plain language of section 7122(a) deprives the Authority of jurisdiction to resolve exceptions to any award that relates to a matter described in section 7121(f). Consistent with the Authority's interpretation and application of section 7122(a), we find that the award concerning the grievant's entitlement to severance pay relates to the grievant's removal within the meaning of the Statute. In our view, severance pay by its very nature is inseparable from, and inherently related to, the removal that provides the entitlement for that pay. Accordingly, we conclude that we are without jurisdiction to resolve the Union's exceptions, and we will dismiss them.(2)
The Union's exceptions are dismissed.
Dissenting opinion of Member Talkin
Contrary to the decision of the majority, I would resolve the Union's exceptions. I do not find that the Arbitrator's award "relat[es] to a matter described in section 7121(f)" within the meaning of section 7122(a) of the Statute.
In my view, Congress designed a perfectly symmetrical framework for the review of arbitration awards for the general Federal civil service. Pursuant to section 7122(a) of the Statute, Congress generally provided for the review of arbitration awards by the Authority. However, for awards relating to matters in which an employee had exercised an option of either filing an appeal with the Merit Systems Protection Board or of filing a grievance under a negotiated grievance procedure, Congress provided for judicial review of the award in accordance with the provisions of 5 U.S.C. § 7703. Having deliberately granted judicial review of these arbitration awards in section 7121(f), Congress carefully removed from the Authority's jurisdiction precisely those matters which the Federal courts of appeals (now exclusively the U.S. Court of Appeals for the Federal Circuit) would review. Under this scheme, in order to determine whether the Authority has been deprived of jurisdiction under section 7122(a) to resolve exceptions to an arbitration award involving an employee in the general civil service, we must examine whether the arbitration award is a substitute for a decision of the MSPB and is reviewable by the Federal Circuit.
I believe that this approach is evident from a careful reading of section 7121 and a study of the legislative history. The Statute for the first time permitted grievances over serious adverse actions and performance-based actions. Previously, these matters could be appealed only to the MSPB's predecessor agency. However, although section 7121(a)(1) makes the negotiated grievance procedure the exclusive procedure for resolving most disputes that are covered by the grievance procedure, section 7121(e)(1) provides an option to an employee entitled to challenge a section 7512 or section 4303 action. The employee may choose to resolve this type of dispute by appealing to the MSPB or by filing a grievance if the dispute has not been excluded from the negotiated grievance procedure, but may not do both.
If an employee elects to file a grievance to challenge a section 7512 or section 4303 action and the grievance is ultimately submitted to arbitration, this arbitration is different from ordinary arbitrations in two significant respects. First, under section 7121(e)(2) of the Statute, the arbitrator hearing that grievance must apply the statutorily prescribed standards of section 7701(c) of the Civil Service Reform Act that would have been applied by the MSPB if the matter had been appealed to the MSPB. As explained in the Conference Report that accompanied the Civil Service Reform Act, Congress set forth these requirements in order to promote consistency and uniformity of process between statutory appeals and arbitration and in order to discourage forum shopping. H. Rep. No. 95-1717, 95th Cong., 2d Sess. 157 (1978). Second, and more importantly, section 7121(f) provides as follows:
In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board.
As explained by the Senate Committee on Governmental Affairs,
[t]he provision for judicial review is intended to assure conformity between the decisions of arbitrators with those of the Merit Systems Protection Board.
S. Rep. No. 95-969, 95th Cong. 2d Sess. 111 (1978).
Based on the foregoing, it is evident to me that for the general civil service, Congress denied the Authority jurisdiction to review only those arbitration awards related to matters "covered under sections 4303 and 7512[,]" in which the employee had exercised the option of filing a grievance rather than filing an appeal with the MSPB. In other words, an award will be subject to review by the Authority under section 7122(a) unless the award is a substitute for the decision of the MSPB and is reviewable by the Federal Circuit. It is only in those cases that Congress provided for judicial review rather than Authority review in order to assure conformity between the decisions of arbitrators and the MSPB. This is the symmetry of review carefully structured by Congress in sections 7121 and 7122 of the Statute.
It is clear in this case that the grievant never filed a grievance to challenge her removal; rather, she exercised her option under section 7121(e) by filing an appeal of the removal with the MSPB. It is also clear that the denial of severance pay is not a matter covered under sections 7512 or 4303 and was not appealable to the MSPB. Under the exclusivity provision of section 7121(a)(1), the only means available to the grievant to challenge the denial of severance pay was by filing a grievance. Consequently, the only means available for review of the award resolving the dispute over severance pay was by filing exceptions under the Statute.
In dismissing the exceptions in this case, the majority has applied a more expansive interpretation of the term "related to" in section 7122(a). I readily agree with the majority that the removal of jurisdiction under section 7122 extends beyond awards solely resolving the challenge to the serious adverse action or performance-based action. However, I strongly disagree that it can appropriately extend to awards, as in this case, where the grievant never filed a grievance over the serious adverse action or performance-based action and where the matter resolved by the arbitrator is not appealable to MSPB and is not reviewable by the Federal Circuit. To me, the Authority's more limited approach to resolutions of requests for attorney fees in conjunction with these matters exemplifies an interpretation and application of the term "related to" that is faithful to the Congressional design and structure.
As the Authority has stated, an award resolving a request for attorney fees is "in supplement to the arbitrator's award relating to a matter described in section 7121(f) . . . ." Illinois Nurses Association, 20 FLRA at 511. In each such case, a grievance had been filed over the section 7121(f) matter and resolved by the arbitrator. Thus, the arbitrator's award resolving the section 7121(f) matter and the request for attorney fees was a substitute for a decision of the MSPB resolving the same issues. Accordingly, the Authority appropriately determined in those cases that the issue of attorney fees was not "separate and distinct" from the original award resolving the section 7121(f) matter and that, therefore, the award relating to attorney fees related to a matter described in section 7121(f). Id.
The fidelity of this approach to the Congressional design is further evidenced by the Authority's decision in Department of Justice, Bureau of Prisons and American Federation of Government Employees, Local 1741, 23 FLRA 802 (1986), in which the Authority denied jurisdiction over an award finding that the grievance concerning a removal was not procedurally arbitrable. In dismissing the exceptions, the Authority reversed its prior position because of the Federal Circuit's decision that arbitrators' determinations on the arbitrability of grievances over a section 7121(f) matter are related to the matter and are subject to judicial review under section 7121(f). In my view, this confirms that our jurisdiction depends on a determination of whether the award is a substitute for the decision of the MSPB and is subject to judicial review by the Federal Circuit.
For these reasons, I do not find that the award relates to the grievant's removal within the meaning of section 7122(a) of the Statute. The award on the issue of severance pay clearly was not a substitute for a decision by the MSPB on the removal and would not be subject to judicial review by the Federal Circuit. Accordingly, I would not dismiss the exceptions in this case and deprive the parties of the only means of review available.
(If blank, the decision does not have footnotes.)
1. Member Talkin's dissenting opinion is set forth at the end of this decision.
2. In sum, we disagree with our dissenting colleague that the Authority must have jurisdiction to review an arbitration award whenever the matter submitted to arbitration could not have been appealed to the Merit Systems Protection Board. In our view, the Statute does not operate to confer jurisdiction on the Authority to review