[ v57 p805 ]
57 FLRA No. 177
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
NATIONAL TREASURY EMPLOYEES UNION
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. MSPB, 13 F.3d 1571 (Fed. Cir. 1994). Here, if the grievant was a non-probationary employee, then he would be subject to 5 U.S.C. § 7512, and the Union's claim could properly be asserted as the basis for an appeal to the MSPB under 5 U.S.C. § 7701 and, following a MSPB decision, to the United States Court of Appeals for the Federal Circuit under 5 U.S.C. § 7703. See 5 U.S.C. §§_7512, 7513.
As the issue arbitrated in this case is inextricably intertwined with a removal matter that could have been reviewed by the MSPB and, on appeal, by the United States Court of Appeals for the Federal Circuit, the award concerns a matter covered by 5_U.S.C. § 7512. FAA, 57 FLRA at 581; Panama Canal Comm'n, 49 FLRA at 1402. Accordingly, we conclude that the Authority lacks jurisdiction to review the award under § 7122(a) of the Statute.
The Agency's exceptions are denied.
Footnote # 1 for 57 FLRA No. 177
Both parties filed additional unsolicited submissions in this case -- the Agency filed a reply to the Union's opposition; the Union filed both a supplemental response to the Agency's exceptions and an objection to the Agency's reply. As the Authority's Regulations do not provide for the filing of supplemental submissions, and as neither party requested permission to file their submissions under 5 C.F.R. § 2429.26, we do not consider the submissions. See AFGE, Local 1770, 52 FLRA 1348, 1348 n.1 (1997).
Footnote # 2 for 57 FLRA No. 177
Footnote # 3 for 57 FLRA No. 177
5 U.S.C. § 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)." 5 U.S.C. § 7121(f) provides, in relevant part that "[i]n matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator."
Footnote # 4 for 57 FLRA No. 177
5 U.S.C. § 4303 covers removals and reductions-in-grade for unacceptable performance, and 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.