American Federation of Government Employees, Local 171 and United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma (Authority decision, July 8, 1994)

Final FLRA decision. This order dismisses exceptions to an arbitration award involving an employee's removal and ends the matter before the Authority. The Authority says 5 U.S.C. §§ 7121(f) and 7122(a) place review of this type of award outside its jurisdiction; the decision identifies the Federal Circuit review route under 5 U.S.C. § 7703. It does not present the 60-day Authority-order review period under 5 U.S.C. § 7123(a) as applying to the underlying award.

Plain-English summary

AFGE Local 171 sought Authority review of an arbitration award arising from an employee's removal at the El Reno federal correctional institution. The union described the dispute as reprisal for union activity and argued that it therefore did not concern the removal itself. The Authority found that the alleged reprisal and the contract procedure questions were directly tied to the removal. Because awards on removals fall outside its arbitration exceptions jurisdiction, it dismissed the union's exceptions without deciding the reprisal allegation.

Decision snapshot

• Authority: Arbitration review exclusion for serious adverse actions under 5 U.S.C. §§ 7121(f) and 7122(a); Federal Circuit route under § 7703.
• Outcome: Union exceptions dismissed for lack of Authority jurisdiction.
• Key point: Labeling a removal dispute as union reprisal did not give the Authority jurisdiction over the arbitration award.

Full text (FLRA public release)

[ v49 p1520 ]
49:1520(138)AR

The decision of the Authority follows:

49 FLRA No. 138

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 171

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

EL RENO, OKLAHOMA

(Agency)

0-AR-2617

ORDER DISMISSING EXCEPTIONS

July 8, 1994

The Union has filed exceptions to the award of Arbitrator Richard J. Craig in the above-captioned case. On May 23, 1994, the Authority issued an Order directing the Union to show cause why its exceptions should not be dismissed as the Authority is without jurisdiction to review exceptions to an award relating to the removal of the grievant from a position in the Federal Service. The Union filed a timely response to the Authority's Order. For the following reasons, the Union's exceptions must be dismissed.

Section 7122(a) of the Federal Service Labor-Management Relations Statute (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 serious adverse actions, such as removals, or suspensions for more than 14 days. See, for example, American Federation of Government Employees, Local 2094 and U.S. Department of Veterans Affairs, Manhattan Medical Center, 44 FLRA 1192 (1992). Review of arbitration awards relating to such matters, like review of decisions of the Merits 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. The Authority is without jurisdiction to review such awards. See, for example, U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Alderson, West Virginia and American Federation of Government Employees, Local 1494, 47 FLRA 572 (1993).

The Union asserts that the Authority has jurisdiction to review the Arbitrator's award as the issue presented to the Arbitrator does not involve the removal of the grievant. Rather, according to the Union, the issue before the Arbitrator concerned whether the Agency practiced reprisal discrimination against the grievant because of his Union activities when the Agency removed him.

It is undisputed that the claim of reprisal discrimination is based on the grievant's removal. Consequently, the Arbitrator's award as to whether there was compliance with the procedural requirements of the parties' collective bargaining agreement is directly related to the removal of the grievant. See, for example, U.S. Department of the Army, Military District of Washington and Federal employees and Transportation Workers, Local 960, 35 FLRA 1272 (1990).

Because the award relates to a matter described in section 7121(f), exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Therefore, the Authority is without jurisdiction to review the Union's exceptions.

Accordingly, the Union's exceptions are dismissed.

For the Authority.

_____
Alicia N. Columna
Director, Case
Control Office

FOOTNOTES:
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have footnotes.)