51:1612(132)AR - - AFGE Local 2094 & VA Medical Center, New York, NY - - 1996 FLRAdec AR - - v51 p1612

[ v51 p1612 ]
The decision of the Authority follows:

51 FLRA No. 132





LOCAL 2094










July 24, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Joseph M. Rich 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 Regulations. The Agency filed an opposition to the Union's exception.

The Arbitrator ruled that the Agency breached the agreement settling the grievance over the grievant's removal and reinstituted certain portions of the settlement agreement.

We conclude that we lack jurisdiction over the exception under section 7122(a) of the Statute. Accordingly, we dismiss the Union's exception.

II. Arbitrator's Award

In July 1991, the Agency removed the grievant(1) for misconduct, and the grievant filed a grievance over the removal. Prior to an arbitration hearing, the parties settled the grievance. Pursuant to the settlement agreement, the Agency gave the grievant a temporary appointment, effective December 29, 1991, for a period not to exceed 1 year. The Agency also agreed that, on or before the expiration of the appointment, the Agency would give good faith consideration to appointing the grievant to a permanent position. The Agency renewed the grievant's temporary appointment for 1 year, but in December 1993, the grievant's appointment was not renewed, and he was terminated.

The grievant claimed that the Agency breached the settlement agreement. The Arbitrator ruled that the Agency breached the settlement agreement, and he reinstituted for a 1-year period the provision that the Agency would give good faith consideration to appointing the grievant to a permanent position. He also ordered the Agency to reinstate provisions for confidentiality and expungement of the grievant's record. The Arbitrator refused to award any backpay because he was uncertain if the grievant would have been permanently appointed even if the Agency had complied with the settlement agreement.

III. Positions of the Parties

The Union contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator failed to award the grievant backpay.

The Agency contends that the award is not deficient because the Arbitrator did not know whether the grievant would have been permanently appointed if the Agency had complied with the settlement agreement.(2)

IV. Analysis and Conclusions

Section 7122(a) of the Statute provides, in pertinent part:

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).

The matters described in section 7121(f) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters which arise under other personnel systems.(3) The award in this case concerns the breach of an agreement settling the grievant's removal, a matter covered under section 7512. Accordingly, although not raised by the parties, a jurisdictional issue is presented concerning whether the Arbitrator's award is "an award relating to a matter described in section 7121(f)."

Under section 7121(e)(1) of the Statute, bargaining unit employees in the general Federal civil service have an option. These employees can either:

--file a grievance over the matter under a negotiated grievance procedure (if the matter has not been    excluded); or

--appeal the matter to the Merit Systems Protection Board (MSPB) (if the employee is within the MSPB's jurisdiction).

In addition to providing this option, Congress acted to promote consistency and uniformity of process between MSPB appeals and arbitration and to discourage forum shopping. H. Rep. No. 95-1717, 95th Cong., 2d Sess. 157 (1978) reprinted in 1978 U.S.C.C.A.N. (92 Stat.) 2891. Thus, under section 7121(e)(2) of the Statute, arbitrators resolving these matters must apply the same statutorily prescribed standards codified in 5 U.S.C. § 7701(c) that would have been applied by the MSPB if the matter had been appealed to the MSPB.

Congress also provided for judicial review of the award in accordance with the provisions of 5 U.S.C. § 7703, which pertain to MSPB decisions. Thus, under section 7121(f) of the Statute, if an employee elects to raise the matter under the negotiated grievance procedure, the arbitrator's award is subject to judicial review in the same manner and under the same conditions as if the award were the decision of the MSPB. 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) reprinted in 1978 U.S.C.C.A.N. (92 Stat.) 2833. In section 7122(a), Congress correspondingly denied the Authority jurisdiction under section 7122(a) over awards relating to these matters, which the Federal courts of appeals (now exclusively the U.S. Court of Appeals for the Federal Circuit) would review.

As a result of this statutory scheme, we will dismiss for lack of jurisdiction exceptions to awards that are a substitute for a decision of the MSPB and are reviewable by