Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees (Authority decision, August 26, 1988)

Final FLRA decision. The Authority dismisses the union's exceptions for lack of jurisdiction because the arbitration award concerns a federal employee's removal. Under 5 U.S.C. §§ 7121(f), 7122(a), and 7703, review of such an award may be sought in the U.S. Court of Appeals for the Federal Circuit, rather than through FLRA exceptions. The Authority did not decide the merits of the union's objections.

Plain-English summary

A Birmingham VA Medical Center employee grieved a removal. An arbitrator found the grievance and invocation of arbitration timely but upheld the removal for just cause. The union's exceptions challenged only the arbitrator's procedural timeliness rulings. The Authority held that those rulings still related to a removal, an adverse action outside its arbitration-exception jurisdiction. It dismissed the exceptions without considering their merits.

Decision snapshot

• Authority: Removal review under 5 U.S.C. §§ 7121(f), 7122(a), and 7703.
• Outcome: Union exceptions dismissed for lack of FLRA jurisdiction; removal award remains.
• Key point: Procedural rulings in a removal grievance follow the same review path as the removal award.

Full text (FLRA public release)

[ v32 p1003 ]
32:1003(143)AR

The decision of the Authority follows:

32 FLRA No. 143

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION MEDICAL

CENTER, BIRMINGHAM, ALABAMA

Activity

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES

Union

Case No. 0-AR-1580

ORDER DISMISSING EXCEPTIONS

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Nicholas A. Beadles. A grievance over the removal of the grievant was submitted to arbitration. The Arbitrator determined that the Activity was timely in the processing of the grievance and that the Union timely invoked arbitration of the grievance. Accordingly, he ruled that the grievance was arbitrable. On the merits, the Arbitrator determined that the removal was for just case. Accordingly, the Arbitrator denied the grievance.

The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition.

Because the Arbitrator's award relates to the removal of the grievant from the Federal service, we are without jurisdiction to review the Union's exceptions.

II. Background and Arbitrator's Award

The Activity removed the grievant from the Federal service. A grievance was filed challenging the removal. The grievance was submitted to arbitration on the issues of (1) whether the Activity had timely processed the grievance; (2) whether the Union had timely invoked arbitration; and, if so, (3) whether the removal of the grievant was for just cause.

The Arbitrator determined that the Activity was timely in the processing of the grievance and that the Union timely invoked arbitration of the grievance. Accordingly, he ruled that the grievance was arbitrable. On the merits, the Arbitrator determined that the removal was for just cause. Accordingly, he denied the grievance.

III. Exceptions

The Union's exceptions are directed only to the Arbitrator's rulings that the Activity was timely in the processing of the grievance and that arbitration was timely invoked. The Union contends that the Arbitrator's ruling that the Activity was timely in the processing of the grievance is (1) contrary to the collective bargaining agreement; (2) contrary to the evidence; (3) beyond the scope of the Arbitrator's authority; and (4) contrary to law.

With respect to the ruling on whether arbitration was timely invoked, the Union contends that the Arbitrator should not have permitted the Activity to raise this issue. The Union argues that under the collective bargaining agreement, the Activity was barred from raising the issue of whether arbitration had been timely invoked because it had not been raised earlier.

IV. Discussion

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

Either party to arbitration under [the Statute] 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 [the Statute]).

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. In addition, review of determinations of procedural arbitrability by arbitrators in grievances relating to adverse actions under 5 U.S.C. § 7512 may also be sought by appeal to the Federal Circuit. See Huey v. Department of Health and Human Services, 782 F.2d 1575 (Fed. Cir. 1986). An arbitrator's award on whether there has been compliance with the procedural requirements of the parties' collective bargaining agreement in the processing of a grievance over an adverse action covered by 5 U.S.C. § 7512 relates to the adverse action. Accordingly, exceptions to such awards must be dismissed. For example, Department of Justice, Bureau of Prisons and American Federation of Government Employees, Local 1741, 23 FLRA 802 (1986).

In this case, the Arbitrator's award on whether the Activity was timely in the processing of the grievance and whether the Union timely invoked arbitration relates to the grievant's removal. Because the Arbitrator's award relates to the grievant's removal, which is a matter covered by 5 U.S.C. § 7512, exceptions to the award cannot be filed with the Authority under section 7122(a) of the Statute. Therefore, we are without jurisdiction to review the Union's exceptions, and we will order them dismissed. See id.

V. Order

The Union's exceptions are dismissed.

Issued, Washington, D.C.,

__________
Jerry L. Calhoun,
Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS
AUTHORITY

FOOTNOTES:
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