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62 FLRA No. 92
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
HEADQUARTERS, XVII AIRBORNE CORPS
AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
June 27, 2008
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Glen M. Bendixsen 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 an opposition to the Union's exception. The Authority issued an Order to Show Cause why the exception should not be dismissed for lack of jurisdiction, to which the Union filed a response.
For the reasons set forth below, we conclude that the Authority lacks jurisdiction over this matter and dismiss the Union's exception.
II. Background and Arbitrator's Award
The Agency removed the grievant from her position. The Union filed a grievance challenging the removal, which was unresolved and submitted to arbitration. Before the Arbitrator, the parties disputed whether the Union could properly bring the grievance under the parties' 2006 collective bargaining agreement (the 2006 CBA) to challenge the grievant's removal. Under the parties' previous CBA (the 2000 CBA), any action appealable to the Merit Systems Protection Board (MSPB), such as removal from federal service, was not covered by the negotiated grievance procedure. Shortly after the grievant's removal, the parties entered into the 2006 CBA, which included in the grievance procedure matters that are appealable to the MSPB.
The Arbitrator framed the issue before him as "whether [the g]rievant's employment rights [were] controlled by the 2000 contract during whose term [the grievant] was removed by the Agency and the grievance was filed." Award at 7. The Arbitrator found that the 2000 CBA -- and not the 2006 CBA -- applied, and he concluded that the grievance was not grievable under the 2000 CBA.
III. Positions of the Parties
A. Union's Exception
The Union argues that the award fails to draw its essence from the 2006 CBA. In this regard, the Union argues that the 2006 CBA clearly states that the 2000 CBA is no longer effective. [n1]
B. Agency's Opposition
As an initial matter, the Agency contends that the Authority does not have jurisdiction to hear this case because the Arbitrator's procedural determination related to a removal action taken under 5 U.S.C. § 7512, which is barred from Authority review pursuant to 5 U.S.C. § 7122(a). [n2] The Agency also contends that the Union's essence claim is without merit.
IV. Order to Show Cause
The Authority ordered the Union to show cause why its exception should not be dismissed. Specifically, the Authority directed the Union to show that the award is not so inextricably intertwined with a removal matter such that the Authority lacks jurisdiction.
[ v62 p504 ] In its response, the Union argues that the Authority has jurisdiction because the award addresses which CBA applies, not the merits of the grievant's removal. According to the Union, the matter resolved at arbitration was not "inextricably intertwined" with a matter covered by 5 U.S.C. § 4303 or § 7512, as the procedural arbitrability issue was severed from the substantive removal case. Union's Response to Order to Show Cause at 3 (citing United States Dep't of the Interior, Nat'l Park Serv., Gettysburg Nat'l Military Park, 61 FLRA 849 (2006) (Gettysburg) (Member Pope agreeing to avoid an impasse)).
V. The Authority lacks jurisdiction to resolve the Union's exception.
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." United States Envtl. Prot. Agency, Narragansett, R.I., 59 FLRA 591, 592 (2004). The matters covered under 5 U.S.C. §§ 4303 and 7512 include removals. [n3] See AFGE, Local 1013, 60 FLRA 712, 713 (2005) (AFGE, Local 1013). 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. 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 MSPB and, on appeal, by the Federal Circuit." United States Dep't of Justice, Fed. BOP, Fed. Det. Ctr., Miami, Fla., 57 FLRA 677, 678 (2002). The Authority has found that arbitration awards resolving procedural issues regarding removal grievances are inextricably intertwined with removal matters. See United States Dep't of the Army, Military Dist. of Wash., 35 FLRA 1272 (1990) (Army) (award concerning compliance with procedural requirements of parties' CBA was directly connected and integral to removal grievance); see also AFGE, Local 171, 49 FLRA 1520, 1521 (1994) (AFGE) (Authority lacked jurisdiction to review arbitration award because award was directly related to grievant's removal).
The Union argues that the Authority has jurisdiction to review its exception because the arbitration award is not "inextricably intertwined" with the Union's removal grievance. Union's Response to Order to Show Cause at 2. Specifically, the Union claims that the Arbitrator decided only an issue regarding the procedural arbitrability of the grievance, which was severed from the removal grievance. However, as discussed above, the Authority has found such procedural matters to be inextricably intertwined with removal matters. See AFGE, 49 FLRA at 1521; Army, 35 FLRA 1275.
The Union cites Gettysburg, 61 FLRA 849, to support its claim that the Authority has jurisdiction. In Gettysburg, the Authority found that a grievance concerning the revocation of a grievant's law enforcement commission was not inextricably intertwined with a separate grievance involving the grievant's removal. Thus, in that case, there were multiple grievances, and the Authority exercised jurisdiction because the grievant's removal had been previously resolved in a separate proceeding. See Gettysburg, 61 FLRA at 852. [n4] By contrast, here, there is only one grievance, and it concerns whether the grievant can bring a removal action under the parties' negotiated grievance procedure. Consequently, the resolution of the removal matter is dependent on the resolution of the issue before the Arbitrator and the two matters are inextricably intertwined. As such, the exception is not within the Authority's jurisdiction and we dismiss the Union's exception on that ground.
The Union's exception is dismissed. [n5]
Footnote # 1 for 62 FLRA No. 92 - Authority's Decision
Footnote # 2 for 62 FLRA No. 92 - Authority's Decision
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) provides, 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.
Footnote # 3 for 62 FLRA No. 92 - Authority's Decision
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.
Footnote # 4 for 62 FLRA No. 92 - Authority's Decision
Member Pope notes that, unlike Gettysburg, 61 FLRA at 853, where she agreed that the Authority lacked jurisdiction solely to avoid impasse in a case where the result was denial of the exceptions on the merits (instead of dismissal for lack of jurisdiction), the award before the Authority in this case resolves a dispute over the proper procedure for contesting a removal action itself. Accordingly, without consideration of the merits of the exception, Member Pope agrees that the Authority lacks jurisdiction. See infra note 5.
Footnote # 5 for 62 FLRA No. 92 - Authority's Decision