[ v63 p2 ]
63 FLRA No. 2
DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
ALBUQUERQUE, NEW MEXICO
INDIAN EDUCATORS FEDERATION
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 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 [MSPB] and, on appeal, by the Federal Circuit." Id. The Authority has found that arbitration awards resolving procedural issues regarding removal grievances are inextricably intertwined with removal matters. [n4] See, e.g., AFGE, Local 1770, 62 FLRA 503 (2008) (grievance concerning whether grievant could bring removal action under parties' negotiated grievance procedure inextricably intertwined with grievant's removal); AFGE, Local 171, 49 FLRA 1520, 1521 (1994) (determination regarding compliance with procedural requirements of parties' agreement directly related to grievant's removal); United States Dep't of the Army, Military Dist. of Wash., 35 FLRA 1272 (1990) (award concerning compliance with procedural requirements of parties' agreement directly connected and integral to removal grievance).
Although the Agency concedes that "removal is involved," Agency's Response to Order to Show Cause at 1, it asserts that the Authority has jurisdiction to review its exceptions because it is challenging the Arbitrator's substantive arbitrability decision, which it claims is "separate from the actual removal decision or, at most, minimally related to the actual removal." Exceptions at 3. As in the cases involving procedural arbitrability cited above, here, the Arbitrator's determination that the grievance was substantively arbitrable under the LCA is inextricably intertwined with the grievance over the grievant's removal under 5 U.S.C. § 7512. In this regard, the grievance concerns whether the grievant can grieve a removal action under the parties' agreement and, if so, whether the grievant's removal was for just cause. Consequently, the resolution of the removal matter is dependent on the Arbitrator's resolution of the substantive arbitrability determination before the Arbitrator and the two matters are inextricably intertwined. See AFGE, Local 1770, 62 FLRA at 504. As such, the Agency's exceptions are not within the Authority's jurisdiction. See id.
The Agency further claims that the Authority should resolve its exceptions because "this is not the sort of matter that the [MSPB] would consider reviewable" because the MSPB recognizes the validity of LCAs. Agency's Response to Order to Show Cause at 1-2. However, the Agency provides no evidence to support this contention. In this regard, the MSPB has been explicitly granted jurisdiction to review removals. [ v63 p4 ] See 5 U.S.C. § 7512. In addition, contrary to the Agency's claim, the MSPB has reviewed whether LCAs waived parties' appeal rights. See, e.g., Nunley v. United States Postal Service, 48 M.S.P.R. 305, 308 (1991) (reviewing administrative judge's interpretation of parties' LCA, and remanding to judge where he did not determine what the parties intended to be the proper construction of this agreement); Ferby v. United States Postal Serv., 26 M.S.P.R. 451, 456 (1985) (MSPB had authority to enforce LCAs). Accordingly, the Agency's exception does not establish that the Authority has jurisdiction to resolve the Agency's exceptions.
Based on the forgoing, we find that the issues before the Arbitrator related to the grievant's removal and dismiss the Agency's exceptions for lack of jurisdiction.
The Agency's exceptions are dismissed. [n5]
Footnote # 1 for 63 FLRA No. 2
5 U.S.C. § 7122(a) states, in relevant part: "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)."
Footnote # 2 for 63 FLRA No. 2
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 63 FLRA No. 2
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 63 FLRA No. 2
Although the Authority has not had occasion to directly address whether a substantive arbitrability determination is inextricably intertwined with a removal matter, in reviewing an arbitrator's substantive arbitrability determination related to the removal of an employee without MSPB appeal rights, the Authority stated that, had the employee had such rights, it would have lacked jurisdiction to review the award. See AFGE, Local 12, 61 FLRA 456, 458 n.2 (2006).
Footnote # 5 for 63 FLRA No. 2