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53:0440(50)AR - - VA Medical Center, Newington CT and NAGE Local R1-109 - - 1997 FLRAdec AR - - v53 p440

[ v53 p440 ]
The decision of the Authority follows:

53 FLRA No. 50










LOCAL R1-109





September 25, 1997


Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

Decision by Member Wasserman for the Authority

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator John J. Mark filed by the Agency under section 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.

The Agency charged the grievant with absence without leave (AWOL) and later removed him. The Arbitrator found that the grievance over the AWOL charge was arbitrable.

For the following reasons, we do not assert jurisdiction over the exception under section 7122(a) of the Statute. Accordingly, we dismiss the Agency's exception.

II. Background and Arbitrator's Award

The Agency determined that the grievant was unfit for duty because he was intoxicated. Accordingly, he was sent home for the remainder of his work day and charged with 6 1/4 hours of AWOL.

When the grievant returned to work the next day, he was presented with a proposed removal letter based on charges of intoxication on duty and AWOL. He responded to the proposed removal and filed a grievance over the AWOL charge. The Agency sustained the charges of intoxication on duty and AWOL and removed the grievant. The Agency also denied the grievance. The grievant appealed his removal to the Merit Systems Protection Board (MSPB), and the Union invoked arbitration of the grievance.

Prior to a decision by the MSPB, the grievant and the Agency settled the removal action. Thereafter, the Arbitrator resolved the threshold issue of whether the grievance was arbitrable under the parties' collective bargaining agreement. He found that the grievance was arbitrable and that the MSPB appeal did not affect the arbitrability of the grievance because the settlement agreement did not resolve the grievant's AWOL dispute.

III. Positions of the Parties

The Agency contends that the Arbitrator "erred in taking jurisdiction in this matter." Exception at 1. The Agency argues that the AWOL charge cannot be separated from the removal that the grievant appealed to the MSPB and that, consequently, section 7121(e) of the Statute precluded the grievant from raising the same matter as a grievance. The Union contends that the Arbitrator correctly found that the grievance was arbitrable.

IV. Analysis and Conclusions

A. Jurisdictional Framework

Under section 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to arbitration awards that relate to a matter described in section 7121(f) of the Statute. The matters described in section 7121(f) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems.(1) The award in this case concerns one of the charges on which the Agency removed the grievant. 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).

The phrase "relating to" is not defined in the Statute. We have construed the phrase to encompass arbitration awards that resolve the section 4303 or 7512 action. E.g., American Federation of Government Employees, Local 2986 and U.S. Department of Defense, National Guard Bureau, The Adjutant General, State of Oregon, 51 FLRA 1549, 1554 (1996) (AG, State of Oregon). We also have construed the phrase to permit the Authority to decline jurisdiction because an award is inextricably intertwined with a section 4303 or 7512 matter. Id. at 1555 (citing Veterans Administration Medical Center, Hines, Illinois and Illinois Nurses Association, Hines Local Unit, 20 FLRA 510 (1985) and FLRA v. Bureau of the Census, 976 F.2d 882 (4th Cir. 1992) (Bureau of the Census)).

In construing the phrase "relating to" in AG, State of Oregon, we examined the statutory scheme of section 7121(e) and section 7121(f) of the Statute. In addition, we were guided by the policy objectives of Congress in fashioning the scope of the Authority's jurisdiction. Pursuant to these provisions, arbitration awards and other administrative decisions are reviewed in the same appellate forum, which operates to ensure consistency and uniformity of process between arbitration and whatever appeal option is available to the affected employee. The statutory scheme also serves, again as Congress intended, to discourage forum shopping. Id. at 1554. We further noted that in delineating between awards that are reviewable by the Authority and those that are not, we are guided by the desirable policy objective of avoiding the multiplicity of litigation over one claim that might result if aspects of the same claim are reviewed in more than one forum. Id.

B. We Decline to Assert Jurisdiction Over the Agency's Exception

In AG, State of Oregon, we drew a distinction between awards that resolve "pure" section 4303 or 7512 matters, over which the Authority clearly has no jurisdiction under section 7121(f), and awards resolving a broader range of matters, over which the Authority may decline jurisdiction, guided by the language of section 7122(a) and the policies reiterated above. In AG, State of Oregon, there was no question that disputes over severance pay were not covered under section 4303 or 7512. The Authority also concluded that severance pay was not inextricably intertwined with the removal that provides the basis for that pay. In addition, we concluded that none of the policy objectives of Congress would be advanced by construing "relating to" broadly enough to encompass severance pay disputes. As no other forum had jurisdiction over the severance pay dispute, if we had declined jurisdiction the parties would have been deprived of review in a case where such a result was neither required by the Statute nor needed to further any discernible public policy. Id. at 1555.

In this case, AWOL is not a matter covered under section 4303 or 7512. E.g., Maki v. U.S. Postal Service, 41 MSPR 449 (1989). Therefore, we are again not faced with a "pure" section 4303 or 7512 matter. In contrast to AG, State of Oregon, however, we conclude that the AWOL charge is inextricably intertwined with the grievant's removal, a matter that is covered under section 7512. See 51 FLRA at 1555 (citing Bureau of the Census as an example of matters that became inextricably intertwined with a removal). Unlike severance pay, the MSPB or an arbitrator will examine the propriety of an AWOL charge in determining whether an employee was lawfully removed based on such a charge. Thus, the AWOL charge in this case simply cannot be separated from the ultimate determination to remove the employee. In addition, unlike AG, State of Oregon, the assertion of jurisdiction in this case would encourage forum shopping and multiple litigation in future cases involving removals based on AWOL charges, which would create the possibility of inconsistent procedures or results in direct conflict with the policy objectives of Congress.

We recognize that our refusal to assert jurisdiction may leave the Agency without a forum to challenge the Arbitrator's award. However, the Agency could have avoided this result by addressing the AWOL charge as part of the MSPB settlement agreement or by refusing to enter into the settlement agreement unless the Union agreed to waive its right to seek review of the Arbitrator's award. We acknowledge that there may be cases where no forum has jurisdiction to review an arbitrator's award. In AG, State of Oregon, we specifically interpreted section 7122(a) of the Statute in a manner to minimize cases of unreviewable awards. Nevertheless, we conclude that the advancement of the Congressional policies of uniformity, discouragement of forum shopping, and avoidance of multiple litigation, as well as the need for clarity and predictability on questions concerning jurisdiction, clearly override any potential for unreviewable awards.

V. Order

The Agency's exception is dismissed.

(If blank, the decision does not have footnotes.)

1. 5 U.S.C. § 4303 covers removals and reductions-in-grade for unacceptable performance. 5 U.S.C. § 7512 covers removals, suspensions for more than 14 days, reductions either in grade or pay, or furloughs for 30 days or less.