73 FLRA No. 25

 

NATIONAL FEDERATION

OF FEDERAL EMPLOYEES

LOCAL 1998

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF STATE

PASSPORT SERVICES

(Agency)

 

0-AR-5766

 

_____

 

ORDER DISMISSING EXCEPTIONS

 

July 1, 2022

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and
Colleen Duffy Kiko and Susan Tsui Grundmann, Members
 

I.             Statement of the Case

 

The Union filed exceptions to an award by Arbitrator Eric M. Fine which upheld the Agency’s removal of the grievant from a passport specialist position for unacceptable performance in a critical work element.  For the reasons below, we find that the Authority lacks jurisdiction under § 7122(a) of the Federal Service      Labor-Management Relations Statute (the Statute).[1]  Accordingly, we dismiss the Union’s exceptions.

 

II.            Background and Arbitrator’s Award

 

At the conclusion of the 2017 rating period, the grievant received a “not successful” rating for below average application adjudications.[2]  Consequently, the grievant was placed on a Performance Improvement Plan (PIP).  Between October 22, 2018 and December 10, 2018, the Agency continued to counsel the grievant and provided opportunities for the grievant to improve performance and meet the performance objectives.  However, the grievant never achieved a level of acceptable performance.  On September 16, 2019, the Agency proposed the removal of the grievant.  On February 6, 2020, the Agency removed the grievant for unacceptable performance.

 

The Union filed a grievance alleging that the Agency violated the parties’ agreement by placing the grievant on a PIP and subsequently removing the grievant for unacceptable performance.[3]  The parties were unable to resolve the matter and the grievance was submitted to arbitration.  Because the parties could not agree on the issues, each submitted separate issue statements.  The Agency phrased the issue as whether it “properly adhere[d] to its legal and contractual requirements . . . when it removed the grievant for unacceptable performance . . . .”[4]  The Union phrased the issues as (1) whether “the Agency violate[d] the [parties’ agreement], policy and/or procedures . . . when making changes to PIPs,” (2) whether the Agency violated the parties’ agreement, policy, or procedures by not affording the grievant assistance and an opportunity to improve prior to issuing an unsatisfactory rating, and (3) whether “the [A]gency’s justification of the PIP . . . violate[d] the parties’ master agreement, policy, and/or procedures.”[5]

 

The Arbitrator did not explicitly frame the issues to be considered at arbitration, but summarized the case as “involv[ing] the . . . termination of [the grievant].”[6]  The Arbitrator denied the grievance, finding that the Agency acted reasonably in removing the grievant, despite finding that the Agency violated the parties’ agreement in the implementation and administration of the PIP.

 

The Union filed exceptions to the award on September 22, 2021.  The Agency filed an opposition to the exceptions on November 18, 2021.[7]

 

III.          Analysis and Conclusion:  The Authority lacks jurisdiction to review the Union’s exceptions.

 

Because the arbitration involved a removal, the Authority’s Office of Case Intake and Publication issued an order, directing the Union to show cause why the Authority should not dismiss the exceptions for lack of jurisdiction under § 7122(a) of the Statute.[8]

 

In response, the Union argues it “advanced a claim of a change in a condition of employment affecting working conditions – the change to the PIP process [and] procedures”[9] – at arbitration, and requested the Arbitrator find an unfair‑labor‑practice (ULP) with respect to these unilateral changes.[10]  Accordingly, the Union argues the Authority has jurisdiction because it advanced claims the Agency violated the parties’ agreement and the Statute in administering the PIP.[11]

 

Under § 7122(a) of the Statute, the Authority lacks jurisdiction to review exceptions to an award “relating to” a matter described in § 7121(f) of the Statute.[12]  Matters described in § 7121(f) include adverse actions, such as removals, that are covered under 5 U.S.C. §§ 4303 or 7512.[13]  Such matters are appropriately reviewed by the Merit Systems Protection Board (MSPB) and ultimately the United States Court of Appeals for the Federal Circuit (Federal Circuit).[14]

 

The Authority will determine an award relates to a matter described in § 7121(f) when it resolves, or is inextricably intertwined with, a matter covered under § 7512.[15]  In making that determination, the Authority looks not to the outcome of the award, but to whether the claim advanced in arbitration is reviewable by the MSPB, and, on appeal, by the Federal Circuit.[16] 

 

Here, the Union argues the Authority has jurisdiction over its claim that the Agency violated the parties’ agreement and the Statute in changing the PIP procedures as applied to the grievant.[17]  However, the Arbitrator considered the Agency’s actions surrounding the implementation and administration of the PIP in determining whether the Agency acted reasonably in removing the grievant.[18]  The Arbitrator also summarized the dispute as “involv[ing] the . . . termination of [the grievant].”[19]  As such, the alleged contractual and statutory violations regarding the PIP procedures applied to the grievant are inextricably intertwined with the removal of the grievant.[20]  Furthermore, the Authority has rejected assertions that it has jurisdiction over a matter inextricably intertwined with a removal merely because a party alleged a ULP.[21]  Accordingly, we lack jurisdiction to review the Union’s exceptions.

 

IV.          Decision

 

                We dismiss the Union’s exceptions.