United States, Environmental Protection Agency, Narragansett, Rhode Island (Agency) and National Association of Government Employees, Local R1-240 (Union)

[ v59 p591 ]

59 FLRA No. 105



LOCAL R1-240




January 23, 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 an award of Arbitrator James M. Litton 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 did not file an opposition to the Agency's exceptions. [n1] 

      We conclude that we lack jurisdiction over this matter, and we dismiss the Agency's exceptions.

II.      Background and Arbitrator's Award

      On October 2, 2001, the grievant's branch chief proposed to remove him for unacceptable performance. On December 28, 2001, the Agency's associate director for ecology notified the grievant of his decision to remove the grievant, effective January 11, 2002. On January 2, 2002, the Union filed a grievance on behalf of the grievant, which claimed that the grievant's removal was not for just cause. On January 3, 2002, the grievant retired.

      The Agency denied the grievance for several reasons. The Agency asserted that because the grievant had voluntarily retired in lieu of removal, no adverse action had been taken. The Agency also asserted that the grievance was not arbitrable and that the actions taken were justified. The Agency advised the grievant that any appeal should be filed with the Merit Systems Protection Board (MSPB) and not submitted to arbitration. The matter was not resolved and was submitted by the Union to arbitration.

      Before the Arbitrator, the sole issue was whether the grievance was arbitrable. The Agency contended that the grievance was excluded from the coverage of the parties' negotiated grievance procedure either because it involved retirement, because it involved a matter that was not final, or because it involved a removal. The Agency also contended that the subject of the grievance was moot because of the grievant's retirement and that the grievance was not arbitrable because of laches.

      The Union contended that the grievance was arbitrable. The Union asserted that it grieved a final action of removal and that it grieved nothing related to the grievant's retirement.

      The Arbitrator concluded that the grievance was grievable and arbitrable. He ruled that this case involves the Agency's removal of the grievant from his position for unacceptable performance and that therefore, it was covered by the parties' negotiated grievance procedure. Although the Arbitrator acknowledged that the grievant retired after the Union filed the grievance and before the effective date of his removal, the Arbitrator determined that the grievance focuses exclusively on the removal and does not raise the issue of retirement. He conceded that the grievant's intervening retirement may present problematic issues regarding a potential ultimate remedy, but he ruled that the retirement did not render nonarbitrable the grievance that protests his removal.

      The Arbitrator rejected the Agency's argument that the removal never became final. He ruled that the grievant's removal was a final action as of December 28, 2001, when the Agency notified the grievant of its decision to remove him, effective January 11, 2002. The Arbitrator also rejected the Agency's arguments that the grievant's retirement rendered this matter moot and that the grievance was not arbitrable because of laches. He reiterated that the Union does not challenge the grievant's retirement and that while the intervening retirement may present problematic remedial issues, it does not alter the subject matter of the grievance. Finally, he found that although there was a significant period of time between his date of selection [ v59 p592 ] and the hearing, the Union did not bear the sole responsibility for such delay.

III.     Agency's Exceptions

      The Agency contends that the award is deficient on the following grounds:

1.     The award is in error because it is based on a nonfact.
2.     The award does not draw its essence from the collective bargaining agreement.
3.     The award incorrectly concludes that the matter is not moot and should not be subject to laches.

See Exceptions at 1. The Agency argues that the award is based on a nonfact because as a result of the grievant's retirement, the grievant was never removed from Federal service. The Agency argues that the award fails to draw its essence from the agreement because the grievance is not arbitrable. The Agency asserts that because the grievance relates to the grievant's removal, the appeal of the Agency's decision to remove the grievant should have been to the MSPB in accordance with Article 33, Section 2.D. [n2]  Finally, the Agency asserts that the Arbitrator erred by finding that the grievance was not moot and was not subject to laches.

IV.      Analysis and Conclusions

      Under § 7122(a) of the Statute, we lack 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 § 4303 are removals and demotions for unacceptable performance. See United States Dep't of the Air Force, Air Force Dev. Test Ctr., Elgin Air Force Base, Fla., 44 FLRA 763, 764 (1992). Arbitration awards relating to these matters are reviewable by the United States Court of Appeals for