United States Department of the Interior, Bureau of Indian Affairs, Southwest Region, Albuquerque, New Mexico (Agency) and Indian Educators Federation (Union)

[ v63 p2 ]

63 FLRA No. 2

UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
SOUTHWEST REGION
ALBUQUERQUE, NEW MEXICO
(Agency)

and

INDIAN EDUCATORS FEDERATION
(Union)

0-AR-4207

_____

DECISION

October 29, 2008

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Sara Adler, filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. The Authority issued an Order to Show Cause why the Agency's exceptions should not be dismissed for lack of jurisdiction, and the Agency filed a response.

      For the reasons set forth below, we conclude that the Authority lacks jurisdiction over this matter and dismiss the Agency's exceptions.

II.      Background and Arbitrator's Award

      As relevant here, the Agency removed the grievant for violating a last chance agreement (LCA) after she had been absent without leave (AWOL). The Union filed a grievance contesting the grievant's removal, which was unresolved and submitted to arbitration. The Arbitrator framed the issues as follows: "1. Is the matter arbitrable? 2. If so, was the discharge of [the] [g]rievant for just cause? 3. If not, what is the appropriate remedy?" Award at 2.

      As an initial matter, the Arbitrator found that the grievance was arbitrable because, under the LCA, the grievant had only waived her appeal rights with respect to alcohol-related conduct and there was no evidence that her absences were alcohol-related. As to the merits of the grievance, the Arbitrator found that the grievant was AWOL on the dates in question. However, after considering several mitigating factors, the Arbitrator determined that the grievant's discharge was without cause. As a result, the Arbitrator reduced the discharge to a thirty-day disciplinary suspension and ordered the Agency to reinstate the grievant with back pay and benefits subject to the thirty-day disciplinary suspension, and to reinstate the LCA for the remainder of its one-year term.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the Arbitrator lacked jurisdiction to adjudicate the grievance because, under the LCA, the grievant waived her right to appeal through any administrative forum. The Agency also argues that its exceptions are properly before the Authority even though a removal action is involved because they are not based on the removal decision, but on procedural, substantive, and jurisdictional grounds. Further, the Agency claims that the Arbitrator exceeded her authority and failed to address aspects of the LCA that were in evidence.

B.     Union's Opposition

      The Union claims that the Authority does not have jurisdiction to resolve the Agency's exceptions under § 7122(a) of the Statute because they involve the removal of an employee. [n1]  In support, the Union cites a case involving the same parties, in which the Authority's then-Case Control Office dismissed exceptions to an award involving the removal of an employee for lack of jurisdiction. See Opposition at 1-2 (citing Order Dismissing Exceptions, April 9, 2004, United States Dep't of the Interior, Bureau of Indian Affairs and Indian Educators Fed'n, Local 4524, 0-AR-3789).

IV.     Order to Show Cause

      The Authority issued an Order to Show Cause why the Agency's exceptions should not be dismissed for lack of jurisdiction. In this connection, the Authority stated that, as the main issue in the award concerns the grievant's removal, it appears that the Authority lacks jurisdiction to review the exceptions under §§ 7122(a) [ v63 p3 ]  and 7121(f) of the Statute. [n2]  See Order to Show Cause at 2.

      In its response, the Agency contends that the Authority has jurisdiction to review the exceptions because, although "[r]emoval is involved, . . . the Agency's exceptions are grounded on [d]ue [p]rocess and on the lack of authority of the [A]rbitrator to hear the matter at all." Agency's Response to Order to Show Cause at 1. In this respect, the Agency argues that the Arbitrator did not have the authority to decide the grievance because the parties entered into an LCA and the matter is, thus, not arbitrable. The Agency further claims that the Merit Systems Protection Board (MSPB) would not consider the matter reviewable because it recognizes the validity of LCAs.

V.     The Authority lacks jurisdiction to resolve the Agency'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). The matters covered under 5 U.S.C. §§ 4303 and 7512 include removals. [n3]  See AFGE, Local 1013, 60 FLRA 712, 713 (2005). 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 resol