American Federation of Government Employees, Local 12 (Union) and United States Department of Labor (Agency)

65 FLRA No. 210              
July 11, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I.     Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Merry C. Hudson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority’s Regulations. The Agency filed an opposition to the Union’s exceptions.[1]
The Arbitrator found that the Agency did not violate the parties’ agreement or law when it removed the grievant from federal service. For the reasons that follow, we dismiss the Union’s exceptions.
II.    Background and Arbitrator’s Award
The Agency gave the grievant a “minimally satisfactory” performance rating and placed him on a performance improvement plan (PIP). Award at 6. After the PIP period ended, the supervisor informed the grievant that his performance had not been successful, and that the grievant could request a downgrade as an alternative to removal. See id. at 7. After a Union representative informed the supervisor that the grievant would consider requesting a downgrade, the grievant e-mailed the supervisor a settlement proposal that provided for a downgrade if certain additional conditions were met. See id. at 7-8. The supervisor rejected the settlement proposal, and the grievant decided not to request a downgrade. Id. at 8. Subsequently, the Agency removed the grievant from federal service for failing to meet the requirements of his PIP. Id. 
The Union filed a grievance challenging the grievant’s removal, and when the grievance was unresolved, it was submitted to arbitration. See id. at 2, 10. At arbitration, the Union argued, as relevant here, that the “performance-based removal of the [g]rievant” violated the parties’ agreement and 5 U.S.C. chapter 43. Id. at 4. The Union also argued that the Agency removed the grievant to retaliate against him for involving the Union in the dispute, and thereby committed an unfair labor practice (ULP). See id. at 4, 12-13.
The Arbitrator framed the issue before her as whether the Agency “removed [the] [g]rievant from his position . . . in violation of the [parties’ agreement] or federal law and, if so, what shall be the remedy.” Id. at 3. The Arbitrator found that the grievant’s removal was justified, and determined that the Agency complied with the parties’ agreement and 5 U.S.C. chapter 43. See id. at 10. In addition, the Arbitrator found that the Agency “considered both [the] [g]rievant’s past performance[] and his performance during the PIP period.” Id. at 17. With regard to the Union’s ULP claim, the Arbitrator found that the Union “failed to show that the Agency’s decision” to remove the grievant was “in any way influenced by [the] [g]rievant’s exercise of his right to obtain union representation.” Id. at 14. Based on the foregoing, the Arbitrator denied the grievance. Id. at 17.
III. Positions of the Parties
A.    Union’s Exceptions
The Union asserts that the Arbitrator “erred in finding that [the] Agency had not engaged in” a ULP, Exceptions at 10, and maintains that the Arbitrator “erred in finding that [the] Agency had lawful reasons to explain its” decision to remove the grievant, id. at 11. Additionally, the Union argues that the award is contrary to 5 C.F.R. § 432.105(a),[2] and that the Arbitrator “erroneously concluded that the Agency could remove employees based on pre-PIP performance.” Id. at 17.
B.    Agency’s Opposition
The Agency contends that the Authority lacks jurisdiction to consider the Union’s exceptions because the grievant’s removal was a performance-based action arising under 5 U.S.C. § 4303 (§ 4303). See Opp’n at 2-3. The Agency also contends that the Arbitrator correctly rejected the Union’s remaining arguments, including its ULP allegation. See id. at 11-15. 
IV. Order to Show Cause and Parties’ Responses
The Authority directed the Union to show cause why its exceptions should not be dismissed for lack of jurisdiction pursuant to § 7122(a) of the Statute because the award “concerns the Agency’s removal of an employee[.]” Order to Show Cause at 1. 
In its response to the show-cause order (Union’s response), the Union asserts that it “appealed to the Authority” because the removal “flowed from the Agency’s commission of” a ULP, and “only the [Authority] can determine whether the Union’s charge is correct.”  Union’s Response at 1.
In a reply to the Union’s response (Agency’s reply), the Agency contends that the Authority does not have jurisdiction because the award is “inextricably intertwined” with a matter covered by § 4303. Agency’s Reply at 2; accord id. at 3 (citing, inter alia, U.S. Dep’t of Veterans Affairs, Carl T. Hayden Med. Ctr., Phoenix, Ariz., 59 FLRA 569, 570 (2004) (Chairman Cabaniss concurring) (VA)).
V.    Analysis and Conclusions
Under § 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to awards “relating to” matters described in § 7121(f) of the Statute.[3] See, e.g., AFGE, Local 491, 63 FLRA 307, 308 (2009) (Local 491). Matters described in § 7121(f) include adverse actions, such as removals for unacceptable performance, that are covered under 5 U.S.C. § 4303 and are appealable to the Merit Systems Protection Board (MSPB) and reviewable by the United States Court of Appeals for the Federal Circuit (Federal Circuit).[4] See, e.g., U.S. Dep’t of Commerce, Patent & Trademark Office, Arlington, Va., 61 FLRA 476, 477 (2006) (PTO). 
The Authority will determin