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59 FLRA No. 101
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF DEFENSE
DEFENSE DISTRIBUTION DEPOT
ORDER DISMISSING EXCEPTIONS
January 13, 2004
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 awards of Arbitrator Diana S. Mulligan filed by both the Agency and the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. Both the Agency and the Union filed oppositions to each other's exceptions. In addition, both parties submitted responses to an Order to Show Cause why their exceptions should not be dismissed.
We conclude that we lack jurisdiction over this matter, and we dismiss the exceptions of both parties.
II. Background and Arbitrator's Awards
On October 3, 2001, the Agency proposed the removal of the grievant, a police officer, on the basis of alleged disregard of standard operating procedures, insubordinate and contemptuous behavior toward superiors, defiance of authority and rude and discourteous conduct, absence without leave (AWOL), and misrepresentation. On January 4, 2002, the grievant was removed from the Federal service, effective January 13, 2002. The grievant filed a grievance over the removal and requested a stay of the removal action. The Agency granted a stay, during which time the grievant was detailed to a warehouse packer position.
On May 14, 2002, the Agency cancelled the grievant's removal and substituted a reduction-in-grade to the lower-graded packer position, effective June 30, 2002. The Union amended the grievance on behalf of the grievant to dispute both the removal and the reduction-in-grade and to request that the grievant be made whole for the adverse impact that he suffered as a result of the removal and the reduction-in-grade. The grievance was not resolved and was submitted to arbitration.
The Arbitrator stated the issue as whether the Agency had just cause to reduce the grievant in grade. She determined that the Agency's charge of AWOL was unsupported. She ruled that the grievant should not have been charged with AWOL and that his pay should not have been reduced. Nevertheless, she determined that on the basis of the remaining charges, the Agency had just cause to reduce the grievant in grade.
The Arbitrator also ruled that "[f]rom the time his removal was proposed in October, 2001, the Grievant has been on a virtual merry-go-round of being employed, not employed and employed somewhere else." Initial Award at 35. As a result, she concluded that the grievant was "entitled to compensation before the final decision became effective." Id. She ruled that the grievant was entitled to overtime pay as a police officer for the overtime hours he would have worked between October 2001 and June 2002. In a supplemental award, the Arbitrator reaffirmed her order of monetary relief.
III. Show Cause Order
Both the Agency and the Union filed exceptions to the Arbitrator's awards. We ordered the parties to show cause why their exceptions should not be dismissed because the awards relate to a matter described in § 7121(f) of the Statute over which we have no jurisdiction. In addition, we ordered the Agency to show cause why its exceptions should not be dismissed because they were not timely filed. [n1]
IV. Positions of the Parties
A. The Agency
In its exceptions to the Arbitrator's awards, the Agency contends that to the extent that the awards pertain to monetary relief for the grievant, they are deficient. In response to the Order to Show Cause, the Agency contends that its exceptions were timely filed [ v59 p573 ] and that the Authority has jurisdiction to resolve them. The Agency acknowledges that the Authority does not have jurisdiction to resolve exceptions to arbitration awards relating to reductions-in-grade. However, the Agency claims that its exceptions relate to backpay and overtime issues over which the Authority does have jurisdiction.
B. The Union
In its exceptions, the Union contends that the awards are deficient by finding that just cause existed to reduce the grievant in grade and by failing to award liquidated damages in relation to the grievant's overtime claim. In response to the Order to Show Cause, the Union notes that the grievant has appealed the Arbitrator's awards to the United States Court of Appeals for the Federal Circuit. The Union concedes that "[t]he issues in this case predominantly involve an adverse action . . . ." Union's Response at 1. However, the Union requests that its exceptions be held in abeyance pending a decision by the Federal Circuit because of the possibility that the Federal Circuit may decline jurisdiction.
V. Analysis and Conclusions
Under § 7122(a) of the Statute, the Authority lacks jurisdiction to review an arbitration award "relating to a matter described in § 7121(f)" of the Statute. The matters described in § 7121(f) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems. Matters covered under § 7512 are serious adverse actions, such as reductions-in-grade. See, e.g., Nat'l Aeronautics and Space Admin., Lewis Research Ctr., Cleveland, Ohio, 54 FLRA 620, 623-24 (1998). Arbitration awards relating to these matters are reviewable by the United States Court of Appeals for the Federal Circuit, rather than by the Authority. See 54 FLRA at 625.
We will find that an award relates to a matter described in § 7121(f) when the award resolves a grievance over a matter covered under § 7512 or is inextricably intertwined with a matter covered under § 7512. See, e.g., United States Dep't of the Air Force, Hill Air Force Base, Utah, 58 FLRA 476, 477 (2003) (Chairman Cabaniss dissenting). In this case, we conclude that the awards relate to the grievant's reduction-in-grade and that we do not have jurisdiction to resolve either the Agency's exceptions or the Union's exceptions.
Clearly, the Union's exceptions, to the extent that they dispute the Arbitrator's determination that there was just cause to reduce the grievant in grade, concern the awards as they directly relate to the grievant's reduction-in-grade. Consequently, we have no jurisdiction to resolve these exceptions. See, e.g., AFGE Local 2836, 48 FLRA 1432 (1994) (exceptions disputing the arbitrator's denial of a grievance over a removal dismissed because the award related to a matter described in § 7121(f)).
We similarly have no jurisdiction to resolve the Union's exception to the Arbitrator's denial of liquidated damages and the Agency's exceptions. Although the parties contend that we have jurisdiction because these exceptions concern the monetary remedies awarded by the Arbitrator, the awards, as they pertain to monetary relief for overtime and the unsupported AWOL charge, still relate to the grievant's reduction-in-grade, within the meaning of § 7122(a) of the Statute. See United States Dep't of Veterans Affairs Med. Ctr., Newington, Conn., 53 FLRA 440 (1997) (award concerning a charge of AWOL could not be separated from a removal based on that charge); United States Dep't of the Navy, Navy Resale Activity, Guam, 40 FLRA 30 (1991) (portion of the award ordering monetary relief for improper actions by the agency in removing the grievant could not be separated from the award as it related to the removal). Accordingly, we dismiss the exceptions of both the Agency and the Union for lack of jurisdiction. [n2]
The exceptions of both the Agency and the Union are dismissed.
Footnote # 1 for 59 FLRA No. 101 - Authority's Decision
We issued a subsequent Order notifying the parties that we would defer ruling on their responses to the Order to Show Cause.
Footnote # 2 for 59 FLRA No. 101 - Authority's Decision
In view of this decision, we do not address the timeliness of the Agency's exceptions. In addition, we deny the Union's request to hold its exceptions in abeyance. In view of our determination that we have no jurisdiction to resolve the Union's exceptions, we find no basis for granting the Union's request.