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60 FLRA No. 135
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
YAZOO CITY, MISSISSIPPI
March 9, 2005
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 Marsha Murphy filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions. The Authority issued an Order to Show Cause why the Union's exceptions should not be dismissed for lack of jurisdiction, and both parties filed responses.
For the reasons set forth below, we conclude that the Authority lacks jurisdiction over the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, an Educational Specialist, was removed from her position for violating the Agency's Standards of Employee Conduct. The Union filed a grievance challenging the grievant's removal, which was unresolved and submitted to arbitration. The parties stipulated the issue to be: "Was the adverse action taken for just and sufficient cause and, if not, what shall be the remedy?" Award at 3.
The Arbitrator determined that the grievant violated the Agency's Standards of Employee Conduct by having improper contact with an inmate's family [ v60 p713 ] member, accepting a package from an inmate's family member, and failing to report receipt of the package to the Agency. See id. at 7-9. The Arbitrator also determined that the Agency's removal of the grievant was appropriate because, under the Agency's Standards of Employee Conduct, an employee "can be terminated the first time the employee is found guilty of improper contact with an inmate's family." Id. at 9. The Arbitrator upheld the Agency's removal of the grievant and denied the grievance.
III. Union's Exceptions
The Union claims that the award is contrary to 5 U.S.C. § 7114(a)(2)(B) because the Agency attempted to require the grievant to sign an affidavit without a Union representative present. [n1] The Union also claims that the award is contrary to arbitration awards and to Douglas v. Veterans Admin., 5 MSPR 280 (1981). In addition, the Union contends that the Arbitrator failed to conduct a fair hearing and that the award is based on a nonfact.
IV. Order to Show Cause and the Parties' Responses
The Authority's Case Control Office directed the Union to show cause why its exceptions should not be dismissed because the award relates to the grievant's removal, a matter over which the Authority lacks jurisdiction under § 7122(a) and § 7121(f) of the Statute. In its response, the Union claims that the Authority has jurisdiction to review its exceptions because the grievant's removal was based on national security concerns and, thus, the removal was pursuant to 5 U.S.C. § 7532, not 5 U.S.C. § 7512. The Union also claims that the Authority has jurisdiction because the Agency committed an unfair labor practice (ULP) by not providing the Union with information it requested under § 7114(b)(4) of the Statute.
The Agency's response asserts that the Authority lacks jurisdiction because the grievant's removal was pursuant to § 7512, not § 7532. The Agency also asserts that the Authority should not consider the Union's claim that the Authority has jurisdiction because the Agency committed a ULP because, according to the Agency, the ULP allegation was made for the first time in the Union's response to the Order to Show Cause.
V. Preliminary Issue
Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 985, 987 (2000). The Union claims that the Authority has jurisdiction because the Agency committed a ULP by failing to provide the Union with information it requested under § 7114 of the Statute. However, nothing in the record indicates that the Union alleged before the Arbitrator that the Agency had committed a ULP by failing to provide it with information; the record shows only that the Union referenced the fact that it had requested information under § 7114. See Union's Response to Show Cause Order, Exhibit A at 3. Moreover, the award contains no reference to an alleged ULP alleging that the Agency failed to provide information or a request for information. Accordingly, pursuant to § 2429.5, we do not consider the Union's claim. [n2] See AFGE, Local 1164, 54 FLRA 856, 860 n.2 (1998).
VI. The Authority lacks jurisdiction to resolve the Union's exceptions.
Under § 7122 of the Statute, the Authority lacks jurisdiction to review an arbitration award "relating to a matter described in section 7121(f)" of the Statute. The matters described in § 7121(f) include serious adverse actions, such as removals, which are covered under 5 U.S.C. §§ 4303 or 7512. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Det. Ctr., Miami, Fla., 57 FLRA 677, 678 (2002) (BOP, Miami). 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., Fed. Aviation Admin., 57 FLRA 580, 581 (2001) (FAA). In making that determination, the Authority looks not to the outcome of the award, but to whether the claim advanced in arbitration is one reviewable by the Merit Systems Protection Board (MSPB) and, on appeal, by the Federal Circuit. See BOP, Miami, 57 FLRA at 678. [ v60 p714 ]
The claim advanced before the Arbitrator related to the grievant's removal. The Union asserted that the grievant "did not commit an offense serious enough to merit discharge" and requested that the grievant be reinstated with back pay. Award at 6. In addition, the Arbitrator's award specifically relates to the grievant's removal. The Arbitrator found that the grievant's violations of the Agency's Standards of Employee Conduct warranted removal. In these circumstances, we find that the award relates to the grievant's removal. See United States Envt. Prot. Agency, Narragansett, R.I., 59 FLRA 591, 592 (2004).
The record does not support the Union's assertion that the Authority has jurisdiction because the grievant was removed in the interest of national security pursuant to § 7532. In this regard, as the Union points out, an Agency witness testified that, as "[w]e just went through 9/11[,]" he would question the judgment of an employee who "brought . . . a package in[to] th[e] institution." Union's Response to Show Cause Order, Exhibit A at 4. However, nothing in this testimony establishes that the grievant was removed under § 7532. Moreover, neither the letter proposing the grievant's removal nor the letter sustaining the removal references § 7532. See Exceptions, Attachments (Joint Exhs. 5 and 7). In fact, the letter sustaining the grievant's removal stated that the grievant had a right to appeal the removal through the negotiated grievance procedure or to the MSPB, rights that do not attach to a removal under § 7532. See 5 U.S.C. § 7532(b) (determination of agency head to remove employee under § 7532 is final). [n3]
Based on the foregoing, we dismiss the Union's exceptions for lack of jurisdiction.
The Union's exceptions are dismissed.
5 U.S.C. § 7114(a)(2)(B) states:
An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee; and the employee requests representation.
5 U.S.C. § 7122(a) provides, in relevant part:
Either 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) states, in pertinent 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.
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.
5 U.S.C. § 7532(b) states, in relevant part:
the head of an agency may remove an employee suspended under subsection (a) of this section when, after such investigation and review as he considers necessary, he determines that removal is necessary or advisable in the interests of national security. The determination of the head of the agency is final.
5 U.S.C. § 7114(b)(4) provides that an agency must furnish information to a union, upon request and "to the extent not prohibited by law," if that information is: (1) "normally maintained by the agency in the regular course of business"; (2) "reasonably available"; (3) "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining;" and (4) not "guidance, advice, counsel or training."
Footnote # 1 for 60 FLRA No. 135 - Authority's Decision
The wording of the relevant statutory provisions is set forth in the attached Appendix.
Footnote # 2 for 60 FLRA No. 135 - Authority's Decision
We note that even if the Union had alleged before the Arbitrator that the Agency committed a ULP by failing to provide it with information, that would not give the Authority jurisdiction to review the termination itself. See 5 U.S.C. § 7116(d) (issues which may be raised under an appeals procedure may not be raised as ULPs).
Footnote # 3 for 60 FLRA No. 135 - Authority's Decision
We note that, even assuming the grievant was removed pursuant to § 7532, such removal would not be subject to the grievance procedure. See 5 U.S.C. § 7121(c)(3) (suspension or removal under § 7532 not within scope of negotiated grievance procedure). See generally Dep't of the Navy v. Egan, 484 U.S. 518, 523 n.4, 526 (1988) (noting that suspensions and removals pursuant to § 7532 are final and entail no right of appeal to the MSPB).