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United States, Department of Veterans Affairs, Carl T. Hayden Medical Center, Phoenix, Arizona (Agency) and American Federation of Government Employees, Local 2382 (Union)

[ v59 p569 ]

59 FLRA No. 100



LOCAL 2382




January 13, 2004


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 Sherman B. Kellar 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 grievance before the Arbitrator challenged the grievant's 30-day suspension. The Arbitrator found that the suspension violated the parties' collective bargaining agreement and constituted an unfair labor practice under the Statute, and awarded certain remedies.

      For the reasons that follow, we dismiss the exceptions for lack of jurisdiction pursuant to §§ 7121(f) and 7122(a) of the Statute.

II.      Background and Arbitrator's Award  [n2] 

      The grievant is a police officer at the Agency. He was issued and served a ten-day suspension for alleged misconduct. At step two of the grievance process, the Agency cancelled the suspension. Several days later, the grievant received a proposed 30-day suspension based on the same incident. The suspension letter advised the grievant that he had an option of filing a grievance or appealing to the Merit Systems Protection Board (MSPB). The grievant served most of the 30-day suspension, and the Union filed a grievance on his behalf. That grievance was denied and the Union invoked arbitration challenging the 30-day suspension.

      In a letter dated five days before the arbitration hearing, the Agency advised the Arbitrator that it was withdrawing the second suspension and that a hearing would no longer be necessary. The Union objected, asserting that the parties had not reached a settlement and the hearing should proceed.

      The Arbitrator concluded that, "[a]bsent a full and complete settlement of this dispute evidenced by mutual agreement of both parties that all the issues involved in the matter have settled," the hearing would proceed as scheduled. Award at 9. At the hearing, the Agency entered a special appearance objecting to the Arbitrator's jurisdiction on the basis that the Agency had rescinded the 30-day suspension. The Agency did not participate in the remainder of the hearing or present any evidence. Both parties filed post-hearing briefs with the Arbitrator.

      Subsequently, the Arbitrator issued his award granting the grievance. He stated two reasons for maintaining his jurisdiction. First, he found that by refusing to participate in the hearing, the Agency violated the parties' collective bargaining agreement. Thus, he found that the Agency was "estopped from asserting a defense of nonarbitrability and lack of jurisdiction at the hearing". Id. at 15. Second, the Arbitrator found that there were issues raised in the grievance that were not resolved by the Agency's subsequent revocation of the suspension.

      The Arbitrator stated the issues before him as follows:

1. Did the thirty-day suspension imposed on Grievant violate the Just and Sufficient Cause Provision of the Contract as stated in Article 13, Section 1[;]

      2. If so, what is the appropriate remedy, if any?

Id. at 4.

      The Arbitrator found that the Agency imposed the 30-day suspension without just cause in violation of Article 13, Section 1 of the parties' agreement. In this [ v59 p570 ] regard, he found that the Agency did not present any evidence to justify the discipline, that the testimony of the Union's witnesses was undisputed, and that the Agency's own records contradicted the charges against the grievant.

      The Arbitrator also found that the Agency imposed the 30-day suspension on the grievant in retaliation for filing a grievance regarding the ten-day suspension, thus committing an unfair labor practice in violation of § 7116(a) of the Statute.

      As a remedy, the Arbitrator ordered that the Agency: (1) make the grievant whole for all lost pay and benefits; (2) not discipline the grievant at any time for the incident and expunge his file of all references to both suspensions; (3) post a notice for 60 days; and (4) provide remedial training for its supervisors with respect to the effect of imposing harsher discipline on an employee after a grievance has been filed. The Arbitrator also retained jurisdiction to award attorney fees upon application by the Union.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that "[a]lthough the Authority lacks jurisdiction to consider exceptions over adverse actions, 5 USC § 7122(a), that prohibition does not apply in this case because [the Agency] cancelled the adverse action and the adverse action no longer existed when the [A]rbitrator conducted the hearing and issued the award. Thus, there is no adverse action to preclude Authority review." Exceptions at 4 n.3.

      The Agency also argues that the issue before the Arbitrator was moot, that the award of supervisory training is a violation of management's right to assign work, and that the grievant is not entitled to attorney fees.

B.     Union's Opposition

      The Union asserts that the Authority does not have jurisdiction over the exceptions filed by the Agency as the matter relates to a suspension of more than 14 days. Citing Authority precedent, the Union contends that "[t]he Authority has consistently ruled that it is without jurisdiction to entertain exceptions from awards mitigating or canceling suspensions of more than 14 days." Opposition at 4-5. The Union also argues that the statutory scheme requires the Office of Personnel Management to petition the Arbitrator for reconsideration and, following denial, to appeal to the U.S. Court of Appeals for the Federal Circuit. According to the Union, "[t]he Agency has taken none of these steps." Id. at 4.

      Alternatively, the Union argues that the matter is not moot. The Union also contends that the award does not violate management's right to assign work and notes that the Agency's argument regarding attorney fees is premature.

IV.      Analysis and Conclusions

      Section 7122(a) of the Statute provides, in pertinent 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)."

      As relevant here, matters described in § 7121(f) include adverse actions covered under 5 U.S.C. § 7512 (removals, suspensions for more than 14 days, reductions either in grade or pay, and furloughs of 30 days or less). 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).

      In this case, the claim advanced in arbitration was the 30-day suspension. The issue, as framed by the Arbitrator, was whether the 30-day suspension was for just cause. This is clearly a claim that could have been reviewed by the MSPB. In fact, the grievant was explicitly informed of that option by the Agency. Agency Exceptions, Exhibit 3. The Authority has consistently held that in a circumstance in which an employee chooses the grievance option, the resulting award is subject to the same review as if the matter had been appealed to the MSPB. See AFGE Local 2094, 51 FLRA 1612, 1615 (1996). In other words, the proper forum for an appeal of the Arbitrator's award in this case is the U.S. Court of Appeals for the Federal Circuit, not the Authority. Id. [n3] 

      Accordingly, as all the issues addressed by the Arbitrator are related to or inextricably intertwined with the 30-day suspension, we find that the Authority is precluded from reviewing the exceptions by §§ 7121(f) and 7122(a) of the Statute.

V.     Order

      We dismiss the exceptions. [ v59 p571 ]

Concurring Opinion of Chairman Cabaniss:

      I write separately to address certain issues raised by the actions of the parties before the Arbitrator and by the issues argued, or in this case not argued, to the Authority. With few exceptions not present here, the Authority cannot address and resolve sua sponte issues not raised by the parties. Consequently, it is incumbent on parties to do as good a job as possible of identifying relevant issues in their cases and arguing them.

      The Arbitrator defined the issues before him as whether there was just cause for the 30-day suspension and if not, what would be an appropriate remedy. While there may indeed be some validity to the Agency's claim of mootness regarding the 30-day suspension, the majority opinion correctly notes that such claims fall within the jurisdiction of the United States Court of Appeals for the Federal Circuit, as would any attorney fee petition related thereto.

      The same might not necessarily be said for the remedial relief of supervisory training based upon the Arbitrator's finding of an unfair labor practice by the Agency. However, the Agency makes no argument as to why that portion of the award is not a part of or inextricably intertwined with the 30-day suspension. The Agency also does not address the potential concern that the unfair labor practice finding (and relief based thereon) exceeded the authority of the Arbitrator by addressing a matter (the Agency's unfair labor practice) that was not before the Arbitrator -- what was before the Arbitrator was compliance with the just cause article in the parties' agreement and remedies for a violation thereof. While there might be some merit to these claims, those claims were not raised and no argument was presented as to why they were not "related to" a 5 U.S.C. § 7121(f) matter and thus available for review by the Authority. Consequently, any answer to those questions will not be addressed here.

      I am not aware of any precedent directly addressing the Authority's jurisdiction to review an arbitration award under 5 U.S.C. § 7121(f) to assess the award's allegedly improper resolution of an issue that the Merit Systems Protection Board (MSPB) would not have addressed, such as here where the issue is whether the Agency committed an unfair labor practice and whether the remedies afforded for such a violation are contrary to law. Our precedent speaks of looking at an issue to see whether it would be reviewable by the MSPB and, on appeal, by the Federal Circuit. United States DOJ, Fed. Bureau of Prisons, Fed. Det. Ctr., Miami, Fl., 57 FLRA 677, 678 (2002). Under that analysis I would conclude that the Authority would have the ability to examine the merits of an arbitrator's unfair labor practice finding, even if that finding is set out in a matter falling under 5 U.S.C. § 7121(f). I also believe that the Authority would have the right to examine such an award falling under 5 U.S.C. § 7121(f) to determine whether the unfair labor practice finding itself amounted to the arbitrator's exceeding his or her authority in addressing the issue on the merits. Again, however, such questions will have to wait until another day.

      Finally, it merits restating, as the Arbitrator noted, that a party refuses at its peril to take part in an arbitration proceeding, and that such conduct amounts to an unfair labor practice. Dep't of Labor, Employment Standards Admin./Wage and Hour Div., Washington, D.C., 10 FLRA 316 (1982). However, the Agency's unfair labor practice from its refusal to take part in the arbitration proceeding also was never raised.

Footnote # 1 for 59 FLRA No. 100 - Authority's Decision

   Chairman Cabaniss' separate opinion is set forth at the end of this decision.

Footnote # 2 for 59 FLRA No. 100 - Authority's Decision

   The facts found by the Arbitrator are based on evidence submitted by the Union. The Agency did not present evidence at the hearing.

Footnote # 3 for 59 FLRA No. 100 - Authority's Decision

      We note the Agency's argument that § 7122(a) "does not apply in this case because [the Agency] cancelled the adverse action and the adverse action no longer existed when the [A]rbitrator conducted the hearing and issued the award." Exceptions at 4 n.3. In this regard, the Agency claims that the Arbitrator should have found that the matter before him was moot. However, because the proper forum for an appeal of the Arbitrator's award in this case is the U.S. Court of Appeals for the Federal Circuit, not the Authority, the Agency's claim of mootness would be for the court, not the Authority, to consider.