American Federation of Government Employees, Local 933 and United States Department of Veterans Affairs, JD Dingell VA Medical Center, Detroit, Michigan (Authority decision, January 22, 2020)

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

AFGE Local 933 asked the Authority to review an arbitrator's procedural-arbitrability ruling in a grievance over an employee's removal. The union argued that the contractual timeliness question was separate from the removal itself. The Authority held that the procedural ruling determined whether the removal claim could proceed and was therefore inextricably intertwined with it. Because removal awards follow the MSPB and Federal Circuit review route, the Authority dismissed the exceptions for lack of jurisdiction.

Decision snapshot

• Authority: 5 U.S.C. §§ 4303, 7121(f), 7122(a), 7512, and 7703; 5 C.F.R. § 2425.7
• Outcome: The Authority dismissed the union's exceptions for lack of jurisdiction.
• Key point: A procedural ruling that determines a removal grievance is part of the removal matter for jurisdictional purposes.

Full text (FLRA public release)

71 FLRA No. 99

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 933

(Union)

and

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

JD DINGELL VA MEDICAL CENTER

DETROIT, MICHIGAN

(Agency)

0-AR-5540

_____

ORDER DISMISSING EXCEPTIONS

January 22, 2020

_____

Before the Authority: Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

This matter is before the Authority on exceptions to an award of Arbitrator E.R. Scales filed by the Union under § 7122(a) of the Federal Service Labor‑Management Relations Statute (the Statute)[1] and part 2425 of the Authority’s Regulations.[2] The Agency filed an opposition to the Union’s exceptions.

Pursuant to § 7122(a) of the Statute, the Authority lacks jurisdiction to review exceptions to an arbitration award “relating to a matter described in [§] 7121(f)” of the Statute.[3] The matters described in § 7121(f) include adverse actions, such as removals, which are covered under 5 U.S.C. §§ 4303 or 7512.[4] Arbitration awards resolving these matters are reviewable by the Merit Systems Protection Board, and ultimately by the United States Court of Appeals for the Federal Circuit (Federal Circuit), rather than the Authority.[5] Consequently, the Authority issued a show‑cause order (SCO) directing the Union to show cause why its exceptions should not be dismissed because the Authority is without jurisdiction to review exceptions relating to an award pertaining to the removal of the grievant from the Agency.[6] In its timely response to the SCO, the Union argued that the Authority has jurisdiction over the exceptions because the Arbitrator’s award solely concerns a timeliness issue under the parties’ agreement that is wholly separate from the removal claim.[7]

We have determined that this case is appropriate for issuance as an expedited, abbreviated decision under § 2425.7 of the Authority’s Regulations.[8]

The Authority has repeatedly held that an arbitrator’s interpretation of procedural issues under the parties’ agreement is inextricably intertwined with the original removal action.[9] Here, because the exceptions concern a procedural arbitrability issue under the parties’ negotiated grievance procedure, the Arbitrator’s determination of the procedural issue is dispositive of the removal claim and is, therefore, inextricably intertwined with that claim.[10] Upon full consideration of the circumstances of this case, including the case’s similarity to other fully detailed decisions involving the same or similar issues,[11] we conclude that the Union’s exceptions are not within the Authority’s jurisdiction and we dismiss the Union’s exceptions on that ground.

Accordingly, we dismiss the Union’s exceptions.

[1] 5 U.S.C. § 7122(a).

[2] 5 C.F.R. pt. 2425.

[3] 5 U.S.C. § 7122(a).

[4] AFGE, Local 491, 63 FLRA 307, 308 (2009) (Local 491).

[5] Id.; see also Appleberry v. DHS, 793 F.3d 1291, 1294-95 (Fed. Cir. 2015) (noting that the Federal Circuit had jurisdiction to review an arbitral determination of procedural arbitrability in a removal claim).

[6] Order to Show Cause at 2.

[7] Response to Order to Show Cause at 1-3.

[8] 5 C.F.R. § 2425.7 (“Even absent a [party’s] request, the Authority may issue expedited, abbreviated decisions in appropriate cases.”).

[9] AFGE, Local 1770, 62 FLRA 503, 504 (2008) (Local 1770) (“[H]ere, there is only one grievance, and it concerns whether the grievant can bring a removal action under the parties’ negotiated grievance procedure. Consequently, the resolution of the removal matter is dependent on the resolution of the issue before the [a]rbitrator and the two matters are inextricably intertwined.”); see also Local 491, 63 FLRA at 308 (2009) (holding that a grievance was inextricably intertwined with removal where the Arbitrator denied the grievance as abandoned); AFGE, Local 171, 49 FLRA 1520, 1521 (1994) (“It is undisputed that the claim of reprisal discrimination is based on the grievant’s removal. Consequently, the [a]rbitrator’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.”); U.S. Dep’t of the Army, Military Dist. of Wash., 35 FLRA 1272, 1275 (1990) (holding that a grievance which was denied for being untimely filed was “directly connected to and an integral part of the grievance over the removal of the grievant”).

[10] Award at 22; Local 1770, 62 FLRA at 504.

[11] 5 C.F.R. § 2425.7.