American Federation of Government Employees, Local 3627 and Social Security Administration, Office of Hearings and Appeals, Region IV (Authority decision, April 22, 1988)

Final FLRA decision. The Authority dismisses the union's exceptions to an arbitration award involving a federal employee's removal because it lacks jurisdiction under 5 U.S.C. § 7122(a). Review of the award may be sought in the U.S. Court of Appeals for the Federal Circuit under 5 U.S.C. §§ 7121(f) and 7703, as described in the decision.

Plain-English summary

An SSA employee grieved a suspension and a later removal, arguing that the discipline reflected union activity, whistleblowing, and ethnic bias. An arbitrator denied the consolidated grievances. The union filed exceptions with the Authority. The Authority found that the award concerned removal, an adverse action covered by 5 U.S.C. § 7512, and that the labor statute withheld jurisdiction over such awards. It dismissed the exceptions without reaching the union's objections.

Decision snapshot

• Authority: 5 U.S.C. §§ 7512, 7121(f), and 7122(a).
• Outcome: Union's exceptions dismissed for lack of jurisdiction.
• Key point: Consolidating a suspension grievance with a removal grievance did not give the Authority jurisdiction over the award concerning removal.

Full text (FLRA public release)

[ v31 p1178 ]
31:1178(100)AR

The decision of the Authority follows:

31 FLRA NO. 100

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3627
Union

and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION, OFFICE OF HEARINGS AND APPEALS, REGION IV Agency

Case No. 0-AR-1490

ORDER
DISMISSING EXCEPTIONS

I. Statement of the Case

This matter is
before the Authority on exceptions to the award of Arbitrator Jason M. Berkman filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Because the Arbitrator's award concerns a removal from Federal service, we are without jurisdiction to review the Union's exceptions.

II. Background and Arbitrator's Award

Following a written reprimand, the Agency suspended the grievant for 7 days for continuing deliberate insubordination. The insubordination was based on the grievant's refusal to state dates and times of departure from and return to duty status and to submit documentation to support a travel voucher as directed by his supervisor. The grievant filed a grievance over the suspension.

While the grievance over the 7-day suspension was pending arbitration, the Agency removed the grievant from Federal service after his refusal to comply with renewed requests for the same

documentation. The Agency found that the grievant had engaged in continuing acts of insubordination and deliberately had made false statements. The grievant filed a grievance over the removal, alleging that the Agency's actions were taken against him because of his Union activities, his "whistleblowing" activities, and his ethnic origin. By agreement of the parties, the grievances were consolidated for arbitration.

The
Arbitrator found that the grievances involved continuing acts of insubordination by the grievant for which he was progressively disciplined. The Arbitrator denied the grievances, finding that: (1) the grievant had not established that the Agency's actions were taken in reprisal for his Union activities or his whistleblowing activities; (2) the Agency had met the burden of showing that its actions were not based on the grievant's ethnic origin; and (3) the Agency had demonstrated that it had valid, non-discriminatory reasons to justify the suspension and removal.

III. Exceptions

The Union repeats the arguments it made before the

Arbitrator. The Union contends, without supporting argument or specific reference, that the Arbitrator misinterpreted the parties' negotiated agreement and that his findings are not supported by the record. Further, the Union contends, without supporting citations, that the Arbitrator's decision is not consistent with decisions of the Comptroller General or other appropriate authority.

The Agency filed an opposition to the Union's exceptions. The Agency contends that the Authority is without jurisdiction to entertain the exceptions as to the grievant's removal. Further, the Agency argues that the Authority should dismiss the

exceptions as to the suspension because the exceptions are not supported by evidence or specific grounds for review as required by the Authority's Regulations. According to the Agency, the exceptions constitute nothing more than disagreement with the Arbitrator's decision.

IV.
Discussion

Section 7122 (a) of the Statute provides, in pertinent

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).

The matters described in section 7121(f) of the Statute include adverse actions, such as removals, under 5 U.S.C. 7512. Review of arbitration awards relating to such matters, like

review of decisions of the Merit Systems Protection Board, may be sought by appeal to the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. 7703.

Separate grievances were filed over the grievant's suspension and subsequent removal. However, the grievances, as found by the Arbitrator, involved continuing acts of insubordination by the grievant for which he was progressively disciplined. We find that the suspension was an inseparable part of the removal. See U.S. Army Missile Command and American Federation of Government Employees, AFL - CIO, Local 1858, 28 FLRA 11 (1987) (exceptions concerning arbitration award

pertaining to performance appraisal which was basis for employee's removal may not be filed with Authority); U.S. Army Armament Research, Development, and Engineering Center (ARDEC), Dover, New Jersey and National Federation of Federal Employees (NFFE), Local 1437, 24 FLRA 837, 839 (1986).

Because the Arbitrator's award concerns a matter covered by 5 U.S.C. 7512, that is, the removal of the grievant from service, exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. The Authority, therefore, is without jurisdiction to review the Union's exceptions. U.S. Army Missile Command, Redstone Arsenal and American Federation of Government Employees, Local 1858, 31 FLRA 715 (1988).

V. Order

The Union's exceptions are dismissed.

Issued,
Washington, D.C., April 22, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES:
(If blank, the decision does not
have footnotes.)