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57 FLRA No. 135
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL DETENTION CENTER
AMERICAN FEDERATION OF
January 15, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator William D. Ferguson 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 did not file an opposition. Both parties submitted supplemental briefs.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by suspending the grievant for 14 days without just cause. To remedy the violation, the Arbitrator ordered, among other things, that the Agency reinstate the grievant, who had been removed from his position subsequent to the 14-day suspension. For the reasons that follow, we conclude that the portion of the award reinstating the grievant is deficient, and we set aside that portion of the award.
II. Background and Arbitration Award
The grievant received 7-, 14-, and 30-day suspensions for various alleged infractions and was ultimately removed from his position. As relevant here, the grievant filed a grievance over the 14-day suspension, and the matter proceeded to arbitration. The Arbitrator concluded that the 14-day suspension was retaliatory and not for just cause, in violation of Article 30 of the parties' agreement. [n2] Therefore, the Arbitrator sustained the grievance.
To remedy the Agency's violation of the parties' agreement, the Arbitrator directed the Agency to remove the 14-day suspension from the grievant's personnel records and pay him for the improper suspension. In addition, the Arbitrator ordered the Agency to reinstate the grievant to his former position, stating the following:
Both the thirty day suspension and the termination referred to the prior discipline in determining the penalty. Under the Gregory case[ [n3] ], that was improper. Logically, those actions could not stand under the Gregory case. At the very least, under the progressive discipline system and the reliance on prior discipline, those actions should be backed off one step. Because those actions were not grieved, the arbitrator declines to order such a remedy. . . . In light of the decision in this case . . . the arbitrator must provide a remedy that denies to the Agency the fruits of its illegal retaliatory conduct. . . . Based thereon, he finds that the [g]rievant is entitled to be reinstated.
Award at 17-18. [ v57 p678 ]
III. Agency's Exceptions
The Agency challenges only the portion of the award reinstating the grievant and argues that the award fails to properly reconstruct what the Agency would have done had it not violated the parties' agreement, as required by Prong II of the framework set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). In this regard, the Agency asserts that the Arbitrator failed to demonstrate how reinstating the grievant would remedy the retaliatory 14-day suspension.
The Agency also argues that the Arbitrator exceeded his authority by awarding the grievant "remedial relief beyond the scope of the matter submitted," Exceptions at 5, and denied it a fair hearing by addressing the grievant's removal without allowing the Agency an opportunity to submit evidence on the matter.
IV. Authority Order and the Parties' Responses
Upon receiving the Agency's exceptions, the Authority directed the parties to submit supplemental briefs addressing the question of whether the award relates to the grievant's removal within the meaning of 5 U.S.C. §§ 7121(f) and 7122(a) so as to deprive the Authority of jurisdiction over the Agency's exceptions.
In its response, the Agency contends that the Authority has jurisdiction over its exceptions because the award does not relate to the grievant's removal within the meaning of § 7122(a) of the Statute. The Agency notes that the Authority has construed § 7122(a) as barring exceptions to awards that resolve disputes, which could have been brought before the Merit Systems Protection Board (MSPB) and are reviewable by the United States Court of Appeals for the Federal Circuit. The Agency asserts that the 14-day suspension at issue in this case could not have been brought before the MSPB. Therefore, the Agency argues, jurisdiction over its exceptions properly lies with the Authority. The Agency also asserts that the 14-day suspension is not inextricably intertwined with the grievant's subsequent removal, and that the Authority's assertion of jurisdiction would not violate public policy.
Relying on Gregory, the Union asserts that the Agency improperly relied on the 14-day suspension to subsequently remove the grievant. Therefore, the Union maintains that the issue of reinstatement was properly before the Arbitrator in determining an appropriate remedy for the unjustified 14-day suspension. As such, the Union argues, the award relates to a matter described in § 7121(f) of the Statute and therefore deprives the Authority of jurisdiction under § 7122(a) of the Statute.
V. Analysis and Conclusions
A. The Authority Has Jurisdiction To Resolve the Agency's Exceptions
Section 7122(a) provides, in relevant part, that "[e]ither 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)." Matters described in § 7121(f) include serious adverse actions, such as removals, which are appealable to the MSPB and reviewable by the United States Court of Appeals for the Federal Circuit. See Panama Canal Comm'n, 49 FLRA 1398, 1402 (1994). The Authority has held that "the existence of Authority jurisdiction to review an award does not properly rest on the outcome of an award but, rather, depends on whether the claim advanced in arbitration is one that would be reviewed by the MSPB and, on appeal, by the Federal Circuit." Id.; see also, United States Dep't of Agric., Forest Serv., N. Region, Idaho Panhandle Nat'l Forests, 49 FLRA 1582, 1587-88 (1994) (declining jurisdiction where union claimed action was a furlough, even though arbitrator found that it was not).
Even though the Arbitrator in this case ordered the grievant to be reinstated, the claim advanced in arbitration, as relevant here, concerned the grievant's 14-day suspension, not the removal. Clearly, a 14-day suspension is not a matter that is appealable to the MSPB and reviewable by the United States Court of Appeals for the Federal Circuit. See 5 C.F.R. § 1201.3 (2001). [n4] As such, the award in this case is reviewable by the Authority pursuant to § 7122(a) of the Statute, irrespective of the Arbitrator's order that the grievant be reinstated. We therefore conclude that we have jurisdiction over the Agency's exceptions.
B. The Portion of the Award Ordering the Grievant To Be Reinstated Is Deficient
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [ v57 p679 ]
In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework established in BEP. Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test to determine whether the award is deficient. Under Prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law within the meaning of § 7106(a)(2) of the Statute or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Under Prong II, the Authority determines whether the arbitrator's remedy reflects a reconstruction of what management would have done had it not violated the law or contract provision at issue.
The award in this case concerns the Arbitrator's enforcement of a just cause provision and, therefore, affects management's right to discipline. See United States Dep't of Vet. Affairs, Med. Ctr., Coatesville, Pa., 53 FLRA 1426, 1429-30 (1998). Because the Agency disputes the award only under Prong II, we assume that the award satisfies Prong I of the BEP framework. See AFGE, Council 220, 54 FLRA 1227, 1235 (1998) (AFGE).
The Arbitrator found that the removal referred to the 14-day suspension and that, under Gregory as well as "the progressive discipline system," that reference was improper. Award at 17. As a result, the Arbitrator concluded that the removal should "be backed off one step." Id. However, the Arbitrator expressly declined to order that remedy because the removal had not been grieved. [n5] The sole reason for the Arbitrator's reinstatement remedy was to "den[y] to the Agency the fruits of its illegal retaliatory conduct." Id. at 17. This finding, however, does not establish, and nothing in the plain wording of Article 30 of the parties' agreement establishes, that the Agency would not have removed the grievant had it complied with Article 30 in connection with the 14-day suspension. In other words, the Arbitrator has not established that rescission of the 14-day suspension necessarily required rescission of the removal.
In these circumstances, the remedy of reinstatement does not reflect a reconstruction of what management would have done had it not violated Article 30 of the parties' agreement. Consequently, the award does not satisfy Prong II of the BEP framework. We conclude, therefore, that the award is contrary to the Agency's right to discipline. See AFGE, 54 FLRA at 1235 (vacating award of reinstatement where arbitrator made no specific findings connecting agency's action with grievant's resignation). Accordingly, without addressing the Agency's other exceptions, we set aside the portion of the award reinstating the grievant.
The portion of the award reinstating the grievant is set aside.
File 1: Authority's Decision in 57 FLRA No.
File 2: Member Armendariz's Opinion
Footnote # 1 for 57 FLRA No. 135 - Authority's Decision
Footnote # 2 for 57 FLRA No. 135 - Authority's Decision
Article 30 of the parties' agreement provides, in relevant part, that "disciplinary and adverse actions . . . will be taken only for just and sufficient cause and to promote the efficiency of the service, and nexus will apply." Award at 3.
Footnote # 3 for 57 FLRA No. 135 - Authority's Decision
The Arbitrator's reference is to Gregory v. United States Postal Serv., 212 F.3d 1296 (Fed. Cir. 2000) (Gregory), vacated by, 122 S. Ct. 431 (2001), where the Federal Circuit held, as relevant here, that "prior disciplinary actions that are subject to ongoing proceedings may not be used to support the reasonableness of a penalty." Id. at 1298. As noted, Gregory was vacated by the Supreme Court subsequent to issuance of the award and the filing of the exceptions and supplemental briefs in this case.
Footnote # 4 for 57 FLRA No. 135 - Authority's Decision
Footnote # 5 for 57 FLRA No. 135 - Authority's Decision