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61 FLRA No. 107
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
May 4, 2006
Before the Authority: Dale Cabaniss, Chairman and Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Paula Ann Hughes 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 filed a motion to dismiss the Union's exceptions for lack of jurisdiction, as well as 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, to which the Union filed a response, and the Agency filed a reply.
For the reasons set forth below, we conclude that we lack jurisdiction to review the Union's exceptions. Accordingly, we dismiss the Union's exceptions.
II. Background and Arbitrator's Award
The two grievants were nurses employed by the Agency. They were terminated from their employment for a variety of offenses. The charges against the first grievant included patient neglect, failure to carry out assignments and unprofessional conduct; the charges against the second grievant included verbal patient abuse and "treating a deceased veteran's body with irreverence; which is a form of patient abuse." Agency Opposition, Ex. 1 at 3, 19. The Union filed a grievance concerning both terminations, which was unresolved [ v61 p561 ] and proceeded to arbitration. The Arbitrator stated that the issues were:
Did the agency violate the following:
1. Memorandum of Understanding dated December 8, 1977
2. Memorandum of Understanding dated March 31, 2004
3. Master Agreement, Article 13, Sections 1, 5, 6 and 10. Section 5 is Alternative and Progressive
Discipline. Section 6 is Fairness and Timeliness
4. Official Records Section 4D
5. Administrative Investigation regarding patient abuse
6. The Douglas Factors [n1]
Award at 3.
The Arbitrator concluded that the December 8 Memorandum of Understanding (MOU) was not an "official MOU," the violation of which would be considered a violation of the parties' agreement. Id. at 5. With respect to the March 31 MOU, the Arbitrator concluded that it was an enforceable agreement, but that it did not apply to terminations of employees.
Turning to parties' collective bargaining agreement, the Arbitrator concluded that Section 1 was merely definitional; that the Agency had not violated the progressive discipline requirements contained in Section 5 because the requirement of progressive discipline was not absolute; and that the Agency had not violated section 6, which requires fair and equitable treatment. With respect to Section 4D of Article 23, the Arbitrator concluded that the Agency had not violated the agreement in its record keeping.
The Arbitrator next addressed the Agency's rules concerning the investigation of patient abuse, finding that the Agency had conducted a variety of investigations. She concluded that, even if a different office should have conducted the investigations, any procedural defect would not have made a difference in the outcome, because "there were several incidents, many were serious and any one could have been grounds for discharge." Award at 7. Finally, she concluded that the Agency had applied the Douglas factors and had not considered a lesser penalty for the two grievants because of the seriousness of the offenses and the Agency's past concern with the grievant's "communications and attitudes." Id. The Arbitrator thus denied the grievance and sustained the adverse action with respect to both grievants.
III. Union's Exceptions and Agency's Opposition
The Union claims the award is deficient because the Arbitrator incorrectly determined that the Agency had not violated the MOUs, contract terms, and Agency policies that it raised below. The Agency responds that the award is not deficient.
IV. Order to Show Cause and the Union's
After the Union filed exceptions to the Arbitrator's award with the Authority, the Agency filed a motion to dismiss for lack of jurisdiction on the ground that the grievance concerns the grievants' removals, matters over which the Authority has no jurisdiction. Thereafter, the Authority's Case Control Office issued an order to show cause why the Union's exceptions should not be dismissed. In its response, the Union argues that the stipulated issues before the Arbitrator were not "inextricably intertwined" with the adverse actions taken against the grievants, because the grievance involved violations of contract and "internal Agency policies[,]" rather than the grievants' removals, and because the Arbitrator "simply heard matters regarding violations of policies and agreements." Response to Order to Show Cause at 1, 2. The Union further argues that the Authority can determine whether the Agency violated the agreements and policies relied on by the Union "without looking to the outcome of the award" and that "there is no claim that the grievants' removals were based upon any of these policies." Id. at 2. In response, the Agency argues that the relief requested in the grievance and the exceptions is the reinstatement of the grievants and that this matter is "more properly addressed by the MSPB and the Federal Courts." Agency Reply to Union Response at 1.
V. The Authority Lacks Jurisdiction To Review
the Union's Exceptions
Under § 7122(a) 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 adverse actions, such as removals, which are covered under 5 U.S.C. § 4303 or § 7512. [n2] See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Det. Ctr., Miami, Fla., [ v61 p562 ] 57 FLRA 677, 678 (2002) (BOP, Miami). Arbitration awards resolving such 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). 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.
The instant grievance alleged that the Agency improperly terminated the grievants. There is no dispute that the grievants' removals constituted adverse actions within the meaning of 5 U.S.C. § 7512. As such, the grievance related to the Agency's adverse actions against the grievants. Because the award resolved issues relating to matters falling under § 7121(f) of the Statute, we do not have jurisdiction to review it. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Prison Camp, Alderson, W. Va., 47 FLRA 572 (1993) (issue of home duty status related to adverse action where raised as harmful error which required reversal of removal decision).
Further, even if the Union were correct that the grievance concerned matters other than the removals themselves, the claimed violations of the parties' agreements and Agency rules are inextricably intertwined with the removals. In this regard, long-standing MSPB precedent establishes that an employee may raise claims that collective bargaining agreements or agency rules were violated in the course of an adverse action. See Hall, 73 MSPR 251, 255 (1997) ("The Board will enforce binding provisions of a collective bargaining agreement in the same manner as it enforces agency regulations and will determine whether harmful error occurred."); Williams, 29 MSPR 525, 527 (1985) (same). As all of the claims advanced here are reviewable by the MSPB, we are precluded from reviewing them. See BOP, Miami, 57 FLRA at 678.
The Union's exceptions are dismissed.
Footnote # 1 for 61 FLRA No. 107 - Authority's Decision
Footnote # 2 for 61 FLRA No. 107 - Authority's Decision
Specifically, § 4303 covers reductions in grade and removals for unacceptable performance, and § 7512 covers removals, suspensions for more than 14 days, reductions in grade, reductions in pay, and furloughs of 30 days or less.