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58 FLRA No. 117
DEPARTMENT OF THE AIR
FORCE HILL AIR FORCE BASE, UTAH
OF GOVERNMENT EMPLOYEES
April 16, 2003
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 Barbara Bridgewater 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. The Authority issued an Order to Show Cause why the Agency's exceptions should not be dismissed for lack of jurisdiction, and the Agency filed a response. For the following reasons, we conclude that the Authority lacks jurisdiction over the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency determined that the grievant was unfit for duty because he was intoxicated. Accordingly, the grievant was sent home and was not permitted to return to work without first undergoing two rehabilitation programs.
A grievance was filed disputing the Agency's decision not to allow the grievant to return to work. Subsequently, the grievant was suspended indefinitely. When the grievance was unresolved, the parties submitted the matter to arbitration on these stipulated issues:
Did management violate a negotiated policy and practice on "Drug and Alcohol Impairment Procedures" by placing [the grievant] on a permanent "not medically fit for duty status". . . ; if so, what shall the remedy be?
Award at 2.
The Arbitrator found that the grievant was not treated "fairly and equitably" and that the Agency wrongly required him to undergo rehabilitation. Id. at 34. Accordingly, the Arbitrator sustained the grievance, concluding that the Agency violated the parties' agreement "by not allowing the [g]rievant to return to work." Id. at 36. As a remedy, the Arbitrator ordered, among other things, that the grievant be reinstated with backpay.
III. Agency's Response to the Order to Show Cause
According to the Agency, the Authority has jurisdiction to review its exceptions because the arbitration award does not resolve a matter described in § 7121(f) of the Statute. The Agency urges the Authority to "look at the issue being grieved," rather than the arbitration award, to determine its jurisdiction. Agency's Response at 7. According to the Agency, the issue grieved concerned the "interpretation and application of [a] collective bargaining agreement" --not the indefinite suspension -- which is not appealable to the Merit Systems Protection Board (MSPB). Id. at 3. To support this claim, the Agency points out that the grievance was filed by the Union in its own behalf, that the indefinite suspension occurred 84 days after the grievance was filed, and that the suspension was appealed to the MSPB, where the grievant claimed that "no grievance had been filed on this matter." Id. at 5.
The Agency also argues that the award is not inextricably intertwined with a § 7121(f) matter because the "alleged contract violation can easily be separated from the indefinite suspension" and "a decision on one does not necessarily affect the other." Id. at 6. According to the Agency, the issues did not remain separate here because the Arbitrator exceeded her authority by "deciding the indefinite suspension issue and granting personal relief to a non-grievant." Id.
Finally, the Agency argues that it will be bound by two conflicting decisions and the Union will have "two bites at the apple" if the Authority declines jurisdiction in this case. Id. at 7. [ v58 p477 ]
IV. The Authority Lacks Jurisdiction to Resolve theAgency's Exceptions
Under § 7122(a) of the Statute, the Authority lacks jurisdiction to review an arbitration award "relating to a matter described in section 7121(f)" of the Statute. [n2] Matters described in § 7121(f) include serious adverse actions, such as suspensions for more than 14 days, which are covered under 5 U.S.C. § 4303 or § 7512. [n3] See United States DOJ, Fed. Bureau of Prisons, Fed. Det. Ctr., Miami, Fla., 57 FLRA 677, 678 (2002) (Bureau of Prisons). Arbitration awards resolving these matters are reviewable by the United States Court of Appeals for the Federal Circuit, rather than the Authority. See 5 U.S.C. § 7121(f) and § 7703. 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. See United States Dep't of Transp., FAA, 57 FLRA 580, 581 (2001). In making that determination, the Authority looks not to the outcome of the award, but to whether the claim advanced in arbitration is reviewable by the MSPB and, on appeal, by the Federal Circuit. See Bureau 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).
Applying this precedent, we conclude that the award relates to a matter described in § 7121(f) of the Statute. In so doing, we reject the Agency's argument that the Authority "should look at the issue being grieved" to determine its jurisdiction. Agency's Response at 7. It is well established that the Authority looks at the claim advanced in arbitration, not the grievance, when determining its jurisdiction. See Bureau of Prisons, 57 FLRA at 678; Cf. United States Dep't of the Army, Fort Polk, La., 44 FLRA 1548, 1552 (1992) (looking at claim advanced in arbitration, rather than grievance form, in determining whether award concerned the classification of a position). Consequently, we also reject the Agency's arguments that we have jurisdiction because the indefinite suspension occurred after the initial grievance was filed and because the Union filed the initial grievance in its own behalf. These facts are not relevant to determining whether the claim advanced in arbitration is one that would be reviewed by the MSPB.
The parties' stipulation of the issue to be resolved in arbitration demonstrates that the claim advanced there was whether management violated applicable procedures in concluding that the grievant was permanently unfit for duty. The MSPB routinely reviews fitness for duty determinations when resolving disputes concerning enforced leave periods of more than 14 days, based on an employee's fitness for duty status. [n4] See, e.g., Gribcheck v. United States Postal Service, 87 M.S.P.R. 473, 481 (2001). In fact, the MSPB reviewed the grievant's fitness for duty determination in reviewing his indefinite suspension. See MSPB Initial Decision, Agency's Exceptions at Attachment 2. Thus, the arbitration award resolves a matter that would be, and indeed was, reviewed by the MSPB.
In reaching this conclusion, we reject the Agency's argument that the claim before the Arbitrator concerned only "an alleged contract violation [which] can easily be separated from the indefinite suspension." Agency's Response at 6. The parties' stipulated issue expressly ties the alleged contract violation to the grievant's fitness for duty status. Moreover, it is undisputed that the grievant's fitness for duty status was the sole basis for his indefinite suspension. Therefore, the propriety of the fitness for duty determination is essential to whether the grievant's indefinite suspension was proper, and the issues are not separate.
Finally, the Agency's assertions that it will be left with conflicting decisions and that the Union will have [ v58 p478 ] "two bites at the apple" do not vest the Authority with jurisdiction. While the Agency is correct that, under § 7121(e) of the Statute, actions like the one here may be reviewed by either an arbitrator or the MSPB, but not both, the fact remains that after review in either forum, the Federal Circuit -- not the Authority -- has exclusive jurisdiction to review the resulting decision. [n5] See 5 U.S.C. § 7121(f) and § 7703(d). Consequently, the Authority is without power to consider the merits of the Agency's claim concerning the grievant's representation to the MSPB. [n6]
Accordingly, we conclude that the Authority lacks jurisdiction to review the Agency's exceptions.
The Agency's exceptions are dismissed.
File 1: Authority's Decision in 58 FLRA No.
File 2: Chairman Cabaniss' Opinion
Footnote # 1 for 58 FLRA No. 117 - Authority's Decision
Footnote # 2 for 58 FLRA No. 117 - Authority's Decision
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:
In 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 in the same manner and under the same conditions as if the matter had been decided by the Board.
Footnote # 3 for 58 FLRA No. 117 - Authority's Decision
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.
Footnote # 4 for 58 FLRA No. 117 - Authority's Decision
The MSPB also routinely resolves disputes over indefinite suspensions before a notice of indefinite suspension is issued. See, e.g., Higgins v. United States Postal Serv., 86 M.S.P.R. 447, 451 para. 7 (2000) (employee's involuntary absence from work for more than 14 days held a constructive suspension appealable to the MSPB). As such, it is irrelevant that the Agency's notice of the indefinite suspension in this case was issued to the grievant after the grievance was filed. Put simply, the grievant could have filed an appeal with the MSPB any time after he had been barred from work for 14 days and that he did so only after receiving the Agency's notice does not change the facts that: (1) the Agency's refusal to permit the grievant to return to work is part and parcel of the subsequent notice of indefinite suspension; and (2) the grievance was filed before the MSPB appeal.
Footnote # 5 for 58 FLRA No. 117 - Authority's Decision
Section 7121(d), which provides that prohibited personnel practices under 5 U.S.C. § 2302(b)(1) may be reviewed by either an arbitrator or in a statutory appeal, but not both, has no similar bar to Authority jurisdiction. Thus, the fact that the Authority reviews awards involving § 7121(d) matters is irrelevant in this case. Put simply, pursuant to §§ 7121(f) and 7122(a), the Authority never has jurisdiction over § 7121(e) matters; the Authority always has jurisdiction over § 7121(d) matters.
Footnote # 6 for 58 FLRA No. 117 - Authority's Decision
This is distinct from the Authority's approach to resolving questions of procedural arbitrability, where the Authority has jurisdiction to review, but nevertheless denies on the merits, exceptions to awards. See, e.g., AFGE, Local 2921, 50 FLRA 184, 185- 86 (1995). Under § 7121(f), the Authority has no jurisdiction without regard to the merits of a claim.