American Federation of Government Employees, Local 2094 and U.S. Department of Veterans Affairs, Manhattan Medical Center (Authority decision, May 7, 1992)

Final FLRA decision. This is a final order dismissing arbitration exceptions because the award concerns an employee removal covered by 5 U.S.C. § 7121(f). The Federal Labor Relations Authority lacks jurisdiction over that award under 5 U.S.C. § 7122(a). Section 7121(f) instead applies the judicial-review provisions of 5 U.S.C. § 7703 to the arbitration award in the same manner and under the same conditions as if the Merit Systems Protection Board had decided the matter.

Plain-English summary

An arbitrator ordered a Manhattan VA Medical Center ward clerk reinstated after her removal, subject to conditions and without backpay. The union challenged the lack of backpay before the Authority. The Authority held that it could not review the exceptions because the award concerned an employee removal, a matter excluded from its arbitration review jurisdiction by statute. It dismissed the exceptions without deciding whether backpay was due and identified the Federal Circuit as the route for review of the removal award.

Decision snapshot

• Authority: Removal arbitration review under 5 U.S.C. §§ 7121(f), 7122(a), and 7703.
• Outcome: Union exceptions dismissed for lack of Authority jurisdiction; backpay issue not decided.
• Key point: Review of an arbitration award about a covered removal follows the Federal Circuit route, not Authority exceptions.

Full text (FLRA public release)

[ v44 p1192 ]
44:1192(94)AR

The decision of the Authority follows:

44 FLRA No. 94

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 2094

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MANHATTAN MEDICAL CENTER

(Agency)

0-AR-2233

ORDER DISMISSING EXCEPTIONS

May 7, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles J. Coleman 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. The Agency filed an opposition to the Union's exceptions.

The grievant grieved her removal from the Agency. In his award, the Arbitrator ordered that the grievant be reinstated to her position within two weeks from the date of receipt of the award, subject to certain stated conditions and without backpay. For the reasons stated below, we conclude that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. Accordingly, we will dismiss the exceptions.

II. Background and Arbitrator's Award

The grievant is a ward clerk in the Agency's Manhattan Medical Center. The matter submitted to arbitration concerned her removal for engaging in three allegedly hostile confrontations with a physician at the Medical Center and for failing to furnish honest testimony during the investigation of the incidents.

The Arbitrator found clear and convincing evidence establishing that the grievant was guilty of the charges levied against her, that they were serious offenses, and that they "carry the potential of removal." Award at 8. In addressing the appropriateness of the penalty imposed, however, the Arbitrator concluded that removal was not an appropriate penalty for the confrontations with the physician and that there were several mitigating factors with regard to the imposition of the penalty for her deceptive and fabricated testimony. Recognizing that the infractions were serious, however, the Arbitrator ordered reinstatement of the grievant under a number of conditions and without backpay.

III. Positions of the Parties

A. The Union

In its exceptions, the Union argues that reinstatement without backpay violates the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator found in effect both that the removal action was procedurally defective and that it was unjustified or unwarranted. The Union also contends that the Arbitrator did not articulate a basis in rule, law or regulation that permits reinstatement without backpay.

In its response to the Authority's order to show cause why the exceptions should not be dismissed because the Authority lacks jurisdiction over the matter or because the exceptions were untimely filed, the Union contends that until the Arbitrator rules definitively why backpay should not be awarded, the case "cannot be considered 'final.'" Response at 1. The Union argues that, consequently, its exceptions do not bear on any matter over which the Authority lacks jurisdiction. In further explanation, the Union states that "[t]he fact that this case was originally a removal does not permit the Authority to deprive the grievant of the statutory remedy under the Back Pay Act." Id. The Union also argues that the exceptions were timely filed.

B. The Agency

The Agency argues that, under section 7121(f) of the Statute, the Authority lacks jurisdiction over this case because the subject of the arbitration was a removal action under 5 U.S.C. § 7512. On the merits of the award, the Agency contends that the Back Pay Act does not require backpay in all instances of reinstatement after removal.

IV. Analysis and Conclusions

We find that the Authority is without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.

Section 7122(a) provides, in pertinent part, as follows:

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) include serious adverse actions covered under 5 U.S.C. § 7512, such as removals. See, for example, U.S. Department of the Army, Army Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900, 34 FLRA 96 (1989). The Agency's assertion that the grievance concerned a removal action under 5 U.S.C. § 7512 is uncontroverted. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C.
§ 7703.

Because the Arbitrator's award relates to the grievant's removal, which is a matter covered under 5 U.S.C. § 7512 and described in section 7121(f), exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Consequently, we are without jurisdiction to review the Union's exceptions and the exceptions will be dismissed.

V. Order

The Union's exceptions are dismissed.

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