72 FLRA No. 120                                                                                                                                                              

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 3369

(Union)

 

and

 

SOCIAL SECURITY ADMINISTRATION

(Agency)

 

0-AR-5710

 

_____

 

DECISION

 

January 14, 2022

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

(Chairman DuBester concurring)

 

Decision by Member Abbott for the Authority[1]

 

1. Statement of the Case

 

In this case, we remind the federal labor relations community that, under § 7122(a) of the    Federal Service Labor‑Management Relations Statute (the Statute),^[2] the Authority lacks jurisdiction to review a supplemental award when it resolves a removal claim.

 

Arbitrator Brenda P. Strashun found that the grievant violated Agency policy and “deserved serious discipline” for those violations, but that the Agency did not have just cause for removing the grievant.[3]  Therefore, the Arbitrator directed the Agency to reinstate the grievant.  Thereafter, the award was returned to the Arbitrator for clarification regarding whether the grievant would be eligible for the within-grade pay increases (WIGIs) that would have accrued between the date of termination and the date of reinstatement (the removal period).  The Arbitrator subsequently found that the grievant did not meet the statutory prerequisites to be eligible for WIGIs covering the removal period.  

 

The main question before us is whether the clarification award is inextricably intertwined with a removal even though the clarification award concerns the grievant’s entitlement to WIGIs.  Because the clarification award resolves the underlying removal action, we find that the Authority lacks jurisdiction to review the award under § 7122(a) of the Statute.

 

II.            Background and Arbitrator’s Award

 

As relevant here, the grievant was removed from employment for alleged violations of the Agency’s systems access policy (the policy).  Thereafter, the Union filed a grievance asserting that the grievant was removed by the Agency without just cause.  The parties were unable to resolve the grievance and the dispute proceeded to arbitration.

 

In the first decision, the Arbitrator found that the Agency did not have just cause for the grievant’s removal but the grievant deserved discipline for violating the policy.  Consequently, the Arbitrator ordered that the Agency reinstate the grievant, but that the grievant forfeit all back pay and all benefits from the removal period. 

 

The Agency reinstated the grievant at the same pay grade and step that the grievant had earned when terminated.  The Agency rejected the Union’s argument that the grievant was entitled to the WIGIs the grievant could have earned if the grievant had worked during the removal period.  The Union then invoked Article 25, Section 5.H of the parties’ agreement—which states that “[i]f the arbitration award is unclear to either party, the award shall be returned to the arbitrator for clarification”[4]—so that the Arbitrator could issue a clarification as to whether the award entitled the grievant to the WIGIs for the removal period.  Following a hearing and submissions from both parties, the Arbitrator subsequently issued a clarification award, finding that the grievant did not meet the statutory prerequisites to be eligible for WIGIs covering the removal period.

 

The Union filed exceptions to this award on January 18, 2021 and on February, 22, 2021, the Agency filed an opposition to the exceptions.

 

III.          Analysis and Conclusions:  The Authority lacks jurisdiction to resolve the Union’s exceptions.

 

On March 30, 2021, the Authority issued an order directing the Union to show cause why its exceptions should not be dismissed for lack of jurisdiction under § 7122(a) of the Statute.[5]  In its response, the Union argues that the Authority has jurisdiction to resolve the exceptions because the clarification award solely concerns the grievant’s entitlement to WIGIs.[6]  Therefore, because the clarification award does not concern a removal, the Union further argues that the Authority must exercise jurisdiction because the clarification award is contrary to law and the parties’ agreement.[7]

 

Under § 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to an award “relating to” a matter described in § 7121(f) of the Statute.[8] Matters described in § 7121(f) include adverse actions, such as removals,[9] that are covered under            5 U.S.C. §§ 4303 or 7512.[10]  The Authority will determine that an award “relates to” a matter described in § 7121(f) when it resolves, or is “inextricably intertwined” with a matter covered under § 4303 or § 7512.[11]  In making that determination, the Authority looks not to the outcome of the award, but to whether the claim advanced in arbitration is one that would be reviewed by the Merit Systems Protection Board and, on appeal, by the U.S. Court of Appeals for the Federal Circuit.[12]  Additionally, the Authority has previously held that it lacks jurisdiction under § 7122(a) of the Statute to review a supplemental award that resolves a removal claim by specifically providing remedies for an unlawful removal.[13]

 

Here, it is undisputed that the grievance concerns a removal[14] and the Arbitrator found in the award that there was not just cause for removing the grievant.[15]  Thereafter, the Union sought a clarification from the Arbitrator to consider an outstanding issue—the grievant’s entitlement to WIGIs—and resolve the Union’s grievance.[16]  Accordingly, because the clarification award resolved the removal claim by finding that the grievant was not entitled to any WIGIs that would have accrued from the date of termination to the date of reinstatement, the clarification award is related to a removal within the meaning of § 7122(a) of the Statute.[17]  Therefore, we conclude that the Authority lacks jurisdiction to review the Union’s exceptions.

 

IV.          Decision

 

                We dismiss the Union’s exceptions. 

 

 

Chairman DuBester, concurring:

 

                I agree with the Decision to dismiss the Union’s exceptions.