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62 FLRA No. 93
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
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 exceptions to an award of Arbitrator Jack D. Tillem 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 exceptions. The Authority issued an Order to Show Cause why the Union's exceptions should not be dismissed for lack of jurisdiction, and 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 exceptions.
II. Background and Arbitrator's Award
The grievant was removed from her position. The Union filed a grievance challenging the grievant's removal, which was unresolved and submitted to arbitration. Prior to the arbitration hearing, the Agency rescinded the grievant's removal and removed all documents pertaining to the removal from her personnel file. The parties nevertheless proceeded to arbitration. The parties did not stipulate to an issue, nor did the Arbitrator frame one. The Union presented the issue as: "Is the grievant entitled to additional remedies beyond the rescis[s]ion of the removal? If so, what shall those remedies be?" Award at 2. The Agency framed the issue as: "Is [the] grievant entitled to compensatory damages? If so, what shall the remedy be?" Id. The Union sought compensatory damages, attorney fees, and other relief.
The Arbitrator found that the grievant was collaterally estopped from raising her whistleblower claim because she had raised that claim in a prior arbitration. The Arbitrator also found that the Agency "had a legitimate non-discriminatory reason" for issuing the removal, and rejected the Union's claim that the Agency failed to comply with the time limits for rendering grievance decisions set forth in the parties' agreement. Id. at 16. In the latter regard, the Arbitrator found that although the Agency did delay its decision regarding the grievance and that the delay breached the parties' agreement, that breach did not entitle the grievant to prevail because the Union had not demonstrated how the grievant was harmed by the short delay. Finding that the grievant had been restored to her position status quo ante, the Arbitrator concluded that there was no basis for awarding any other remedy to the grievant. Accordingly, he denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that the Arbitrator erred in finding that the grievant was collaterally estopped from raising a whistleblower claim in this case. The Union also asserts that the award is based on a nonfact insofar as, according to the Union, the Arbitrator found that the Agency "had a good faith reason" for removing the grievant. Exceptions at 7. The Union further argues that the award fails to draw its essence from the parties' agreement because the Arbitrator imposed a "harmful error test" in applying the provision of the parties' agreement concerning time limits for rendering grievance decisions where no such test exists in the language of the provision. Id. at 11.
B. Agency's Opposition
The Agency asserts that the Arbitrator correctly applied the doctrine of collateral estoppel, and that the award is not based on a nonfact and does not fail to draw its essence from the parties' agreement.
IV. Order to Show Cause
The Authority directed the Union to show cause why its exceptions should not be dismissed because the award relates to a matter over which the Authority lacks jurisdiction. In this connection, the Authority stated that the issue of additional remedies appeared to be "inextricably [ v62 p506 ] intertwined" with the issue of the removal, a matter over which the Authority lacks jurisdiction under § 7122(a) and § 7121(f) of the Statute. [n1] Order to Show Cause at 2 (quoting AFGE, Local 1013, 60 FLRA 712, 713 (2005) (AFGE, Local 1013)).
In its response, the Union claims that this case is not "inextricably intertwined" with the grievant's removal because the removal had been cancelled prior to the arbitration hearing and, thus, "[t]here was no underlying action that could have given rise to [Merit Systems Protection Board (MSPB)] jurisdiction[.]" Union's Response to Show Cause Order at 2. The Union further asserts that the only question remaining before the Arbitrator was whether there was any remedy under the parties' agreement that could be awarded to the grievant. The Union states that this case is similar to United States Department of the Interior, National Park Service, Gettysburg National Military Park, 61 FLRA 849 (2006) (Member Pope agreeing to avoid an impasse) (Gettysburg), in which the Authority found that a grievance concerning a removal based on the revocation of a grievant's credentials was not inextricably intertwined with a separate grievance involving whether the credentials were properly denied.
V. The Authority lacks jurisdiction to resolve 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 [§] 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) (EPA). The matters covered under 5 U.S.C. §§ 4303 and 7512 include removals. [n2] See AFGE, Local 1013, 60 FLRA at 713. 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, § 7512, or similar matter. AFGE, Local 1013, 60 FLRA at 713. 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 United States Court of Appeals for the Federal Circuit. See id.
The MSPB has been explicitly granted jurisdiction to review removals, see 5 U.S.C. § 7512, as well as to award compensatory damages. See 5 C.F.R. § 1201.202(c). Further, the MSPB has repeatedly held that its jurisdiction is determined by the nature of an agency's action against a particular appellant at the time an appeal is filed with the MSPB and, generally, an agency's unilateral modification of its adverse action after an appeal has been filed cannot divest the MSPB of jurisdiction unless the appellant consents to such divestiture, or unless the agency completely rescinds the action being appealed. See, e.g., Himmel v. Dep't of Justice, 6 M.S.P.R. 484, 486 (1981). However, when an appellant has outstanding, viable claims for compensatory damages before the MSPB, the agency's complete rescission of the action appealed does not afford the appellant all of the relief available before the MSPB, and, therefore, mere rescission does not render the appeal moot. See Currier v. United States Postal Serv., 72 M.S.P.R. 191, 197 (1996) (Currier).
Before the Arbitrator, the Union specifically asserted that the grievance "concern[ed] the [g]rievant's removal[,]" Union's Closing Brief at 5, Attachment to Agency's Opposition, and advanced the following claim: "Is the grievant entitled to additional remedies beyond the rescission of the removal?" Id. The Union also asserted that the grievant was entitled to additional remedies based on the "enormous stress and depression" the grievant suffered as a result of being removed and wrongfully accused of the charges in the removal notice. Award at 5-6. In denying the Union's request for additional remedies, the Arbitrator found that the Agency "had a legitimate non-discriminatory reason" for issuing the removal, and "did not procrastinate in absolving [the] grievant and dismissing the charges" once it [ v62 p507 ] received additional evidence pertaining to the charges that formed the basis for the grievant's removal. Id. at 16, 15. There is no evidence that the relief sought by the Union depends on factors other than the removal. Thus, we find that the remedial issues before the Arbitrator were inextricably intertwined with the grievant's removal.
As discussed above, the fact that the Agency modified its adverse action after the grievance was filed does not alter the fact that the grievant's claims for relief are the types of matters that would be resolved by the MSPB. See Currier, 72 M.S.P.R. at 197. Thus, despite the Agency's complete rescission of the grievant's removal and restoration to the status quo ante, the grievant's claim for compensatory damages remained viable and, therefore, the MSPB and the Federal Circuit would not have been deprived of jurisdiction by virtue of the rescission of the removal.
With regard to the Union's reliance on Gettysburg, 61 FLRA 849, that case is distinguishable from the present case. 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 remedies sought were not tied solely to the grievant's removal. By contrast, here, there is only one grievance, it concerns a removal, and the sole basis for the remedies sought by the Union is the alleged harm suffered by the grievant as a result of that removal. [n3]
Based on the foregoing, we find that the issues before the Arbitrator related to the grievant's removal and dismiss the Union's exceptions for lack of jurisdiction. See, e.g., EPA, 59 FLRA at 592.
The Union's exceptions are dismissed. [n4]
Footnote # 1 for 62 FLRA No. 93 - 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 # 2 for 62 FLRA No. 93 - 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 # 3 for 62 FLRA No. 93 - 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 remedies for a removal action itself. Accordingly, without consideration of the merits of the exceptions, Member Pope agrees that the Authority lacks jurisdiction. See infra note 4.
Footnote # 4 for 62 FLRA No. 93 - Authority's Decision