United States Department of the Treasury, United States Customs Service (Agency) and National Treasury Employees Union (Union)

[ v57 p805 ]

57 FLRA No. 177

UNITED STATES
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
(Union)

0-AR-3476

_____

DECISION

May 29, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Roger I. Abrams 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 filed an opposition to the Agency's exceptions. [n1] 

      The Arbitrator found that the Agency removed an employee (the grievant) after the grievant had completed his probationary period, and as a result, any objections to the removal action were arbitrable under the parties' collective bargaining agreement. The Arbitrator ordered the Agency to rescind the removal and reinstate the grievant with back pay and benefits.

      For the reasons that follow, we conclude that we lack jurisdiction to review the award under § 7122(a) of the Statute. Accordingly, we dismiss the Agency's exceptions. [ v57 p806 ]

II.     Background and Arbitrator's Award

      The Agency issued a removal notice to the grievant, and the Union sought to challenge the removal. As an initial matter, the Agency and the Union disputed whether the grievant was a probationary employee when the removal became effective, thereby prohibiting the Union from grieving and arbitrating the removal under the parties' agreement. [n2]  That dispute was unresolved and the parties agreed to submit that issue to arbitration, where the parties stipulated to the following issue: "Did the [g]rievant complete his probationary period?" Initial Award at 2.

      As relevant here, the Arbitrator found that the grievant was not a probationary employee when his removal became effective. Subsequently, the Arbitrator clarified his award based on the parties' request, finding that the appropriate remedy was to reinstate the grievant, and that the Agency was then free to remove the grievant, provided that they afford him the procedural protections of a non-probationary employee. Clarified Award at 4-5.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the Arbitrator's finding that the grievant's removal is arbitrable is inconsistent with 5 U.S.C. § 7121(c)(4) and the parties' agreement, both of which the Agency argues preclude a probationary employee from filing a grievance over a removal action. Exceptions at 9-11. In addition, the Agency asserts that the Arbitrator's finding that the grievant was not removed prior to the completion of his probationary period is inconsistent with Merit Systems Protection Board (MSPB) case law. Id. at 11-15.

B.     Union's Opposition

      The Union asserts that the Authority lacks jurisdiction under § 7122(a) of the Statute to resolve the Agency's exceptions. In this regard, the Union argues that the issue of whether the grievant's probationary period was completed at the time the removal became effective is integrally bound up with the challenge to the removal action, which involves whether the grievant received the procedural protections set forth in § 7513 of the Statute. Additionally, the Union asserts that the award is not inconsistent with the parties' agreement or MSPB case law.

IV.     The Authority Lacks Jurisdiction To Resolve the Agency's Exceptions

      Section 7122(a) of the Statute provides that a party may not file exceptions with the Authority to an arbitration award that "relates to" a matter described in § 7121(f). [n3]  Matters described in § 7121(f) include serious adverse actions, such as removals, which are covered under 5 U.S.C. § 4303 or § 7512 and are appealable to the MSPB and reviewable by the United States Court of Appeals for the Federal Circuit[n4]  United States Dep't of Justice, Fed. Bur. of Prisons, Fed. Det. Ctr., Miami, Fla., 57 FLRA 677, 678 (2001) (Bur. of Prisons). The Authority will determine that an award relates to a matter described in § 7121(f) when it resolves, or is "inextricably intertwined" with, a § 4303 or § 7512 matter. United States Dep't of Transp., FAA, 57 FLRA 580, 581 (2001) (FAA). In making that determination, the Authority has looked not to the outcome of the award, but to whether the claim advanced in arbitration is one that would be reviewed by the MSPB and, on appeal, by the Federal Circuit. Bur. of Prisons, 57 FLRA at 678; United States Dep't of Agric., Forest Serv., N. Region, Idaho Panhandle Nat'l Forests, 49 FLRA 1582, 1587-88 (1994); Panama Canal Comm'n, 49 FLRA 1398, 1402 (1994).

      In this case, the issue as framed by the parties and addressed by the Arbitrator was whether the grievant had completed his probationary period when his removal became effective. While the parties elected to arbitrate this issue separately and as a preliminary matter, the issue is inextricably intertwined with the Union's underlying claim challenging the removal. The issue of whether the grievant's probation period was completed is an essential element of the Union's claim concerning the removal action, as it is a necessary factor in establishing whether the grievant was entitled to the procedural protections set forth in 5 U.S.C. §§ 7512-7513. In this regard, the MSPB routinely resolves the issue of whether or not an employee is probationary in [ v57 p807 ] addressing challenges to removal actions. See Hardy v.