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File 2: Member Armendariz's Opinion

[ v57 p679 ]


Concurring opinion of Member Armendariz

      I agree with my colleagues that the Authority has jurisdiction to resolve the Agency's exceptions, and that the portion of the award ordering the grievant to be reinstated is deficient. I write separately to address the jurisdictional issue.

      In Panama Canal Comm'n, 49 FLRA 1398 (1994) and other cases in which I joined, [n1]  the jurisdictional inquiry was directed to the claim before the arbitrator, not to the outcome of the award. Application of that precedent to this case leads to the conclusion that the Authority has jurisdiction over the exceptions, because the claim before the Arbitrator here concerned only the grievant's 7-day and 14-day suspensions, not his 30-day suspension or his removal. [n2] 

      This conclusion is consistent with the majority opinion in AFGE Local 3529, 49 FLRA 1482 (1994), in which I joined, and in my dissenting opinion in AFGE Local 2986, 51 FLRA 1549, 1558-59 (1996). In those cases, grievances were filed concerning the denial of severance pay and the arbitrators resolved that issue. It was my view that the awards in those cases "relat[ed] to" the grievants' removals within the meaning of § 7122(a) of the Statute because the grievants' entitlement to severance pay was inherently related to, and inseparable from, the removals that provided the basis for that pay. Here, in contrast, the grievance concerned only a 7-day and a 14-day suspension, neither of which is inherently related to, and inseparable from, a matter described in § 7121(f) of the Statute.

      Accordingly, I agree that the Authority has jurisdiction in this case.


File 1: Authority's Decision in 57 FLRA No. 135
File 2: Member Armendariz's Opinion


Footnote # 1 for 57 FLRA No. 135 - Member Armendariz's Opinion

   See United States Dep't of Agric., Forest Serv., N. Region, Idaho Panhandle Nat'l Forests, 49 FLRA 1582 (1994), and United States Dep't of the Treasury, IRS Cleveland District, 49 FLRA 1503 (1994).


Footnote # 2 for 57 FLRA No. 135 - Member Armendariz's Opinion

   The Arbitrator found that he did not have jurisdiction over the 7-day suspension. No exception was taken to this finding.