American Federation of Government Employees, Local 1013 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Yazoo City, Mississippi (Agency)
[ v60 p712 ]
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