American Federation of Government Employees, Local 2324 and United States Department of the Army, Directorate of Public Works, Fort Riley, Kansas (agency decision, March 18, 2022)

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

Fort Riley removed a maintenance worker for conduct unbecoming a federal employee, including misleading leave requests and inaccurate information during a management inquiry. An arbitrator found the grievance arbitrable, held a merits hearing, and sustained the removal. AFGE Local 2324 filed exceptions challenging the arbitrator's legal, factual, and contract conclusions. The Authority held that its arbitration-review statute excludes awards relating to removals covered by the federal adverse-action system. The Union's arguments did not show that the grievance involved anything other than the removal itself. The Authority dismissed the exceptions for lack of jurisdiction.

Decision snapshot

• Authority: 5 U.S.C. §§ 4303, 7121(f), 7122(a), 7123(a)(1), 7512, and 7703
• Outcome: The Authority dismissed the Union's exceptions for lack of jurisdiction, leaving the arbitrator's removal award in place.
• Key point: Challenges to a removal award proceed through the Merit Systems Protection Board and Federal Circuit route, not FLRA arbitration-exception review.

Full text (FLRA public release)

72 FLRA No. 139

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2324

(Union)

and

UNITED STATES

DEPARTMENT OF THE ARMY

DIRECTORATE OF PUBLIC WORKS

FORT RILEY, KANSAS

(Agency)

0-AR-5741

DECISION

March 18, 2022

Before the Authority: Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

(Chairman DuBester concurring)

Decision by Member Abbott for the Authority

I. Statement of the Case

The Union filed exceptions to an award by Arbitrator Stephen Douglas Bonney which upheld the Agency’s removal of the grievant from federal service for conduct unbecoming of a federal employee. For the reasons below, we find that the Authority lacks jurisdiction under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute).[1] Accordingly, we dismiss the Union’s exceptions.

II. Background and Arbitrator’s Award

The Agency removed the grievant from a Maintenance Worker position and from federal service for conduct unbecoming of a federal employee including, submitting misleading and/or inaccurate leave requests and providing misleading and/or inaccurate information during a management inquiry. The Union filed a grievance contesting the removal and invoking arbitration. Before the hearing, the Agency raised a preliminary issue regarding arbitrability of the grievance. Following submission of briefs from both parties on the issue, the Arbitrator found the Union’s grievance arbitrable under the parties’ collective-bargaining agreement. A hearing proceeded on the merits.

The parties stipulated the following issues at arbitration: whether there is a preponderance of evidence to find that the grievant committed the charge of conduct unbecoming a federal employee for (1) “submit[ting] misleading and/or inaccurate leave requests,” and/or (2) “provid[ing] misleading and/or inaccurate information or responses during management inquiry.”[2] And, if so, “[w]hether the penalty of removal was reasonable and of such nature as to promote the efficiency of the service?”[3] The Arbitrator ultimately denied the grievance and sustained the grievant’s removal.

The Union filed exceptions to the award on June 14, 2021. The Agency filed an opposition to the exceptions on July 13, 2021.

III. Order to Show Cause

After receiving the Union’s exceptions, the Authority’s Office of Case Intake and Publication (CIP) issued a show-cause order. CIP requested the Union to show cause why its exceptions to an award relating to the removal of the grievant should not be dismissed for lack of jurisdiction under § 7122(a) of the Statute.[4]

In response, the Union argues that “[b]ut for the Arbitrator’s misinterpretation of law, rule and regulation, basing his decision on [n]on-fact and failing to draw his conclusion from the parties’ agreement[,] the Arbitrator would have reached different conclusions.”[5] Specifically, the Union argues that this case is properly before the Authority because “review of the legal conclusions made by the Arbitrator are within the jurisdiction of the [Authority].”[6]

IV. Analysis and Conclusion: The Authority lacks jurisdiction to resolve the Union’s exceptions.

Under § 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to an award “relating to” a matter described in § 7121(f) of the Statute.[7] Matters described in § 7121(f) include adverse actions, such as removals, that are covered under 5 U.S.C. §§ 4303 or 7512.[8] Such matters are appropriately reviewed by the Merit Systems Protections Board (MSPB) and ultimately the United States Court of Appeals for the Federal Circuit (Federal Circuit).[9]

The Authority will determine that an award relates to a matter described in § 7121(f) when it resolves, or is inextricably intertwined with, a matter covered under § 7512.[10] In making that determination, the Authority looks not to the outcome of the award, but to whether the claim advanced in arbitration is reviewable by the MSPB, and, on appeal, by the Federal Circuit.[11]

Here, the grievant’s removal was before the Arbitrator. Specifically, the Arbitrator was tasked with determining, among other things, whether “the penalty of removal was reasonable and of such nature as to promote the efficiency of the service.”[12] The Union’s response does not demonstrate how the grievance relates to a matter other than the grievant’s removal and only restates the arguments presented in its exceptions.[13] Without more and applying the above precedent, the award relates to a matter described in § 7121(f) of the Statute.[14] Accordingly, we conclude that the Authority lacks jurisdiction to review the Union’s exceptions.[15]

V. Decision

We dismiss the Union’s exceptions.

Chairman DuBester, concurring:

I agree with the Decision to dismiss the Union’s exceptions.

[1] 5 U.S.C. § 7122(a).

[2] Award at 3.

[3] Id.

[4] Order to Show Cause at 2 (“Because it appears that the claim advanced at arbitration is inextricably intertwined with a removal that is reviewable by the [Merit Systems Protection Board], the Union must show cause why the Authority should not dismiss its exceptions for lack of jurisdiction.”).

[5] Response to Order (Response) at 6.

[6] Id.

[7] 5 U.S.C. § 7122(a) (“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).”); id. § 7121(f) (“In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the [Merit Systems Protection] Board.”).

[8] U.S. Dep’t of VA, John J. Pershing VA Med. Ctr, Poplar Bluff, Mo., 72 FLRA 88, 89 (2021) (Poplar Bluff) (Chairman DuBester concurring) (citing AFGE, Loc. 933, 71 FLRA 521, 521 (2020)).

[9] Id. (citing U.S. Dep’t of VA, John J. Pershing VA Med. Ctr., 71 FLRA 533, 534 (2020) (VA)).

[10] VA, 71 FLRA at 534 (citing AFGE, Loc. 1013, 60 FLRA 712, 713 (2005) (finding Authority lacked jurisdiction to resolve exceptions to award where claim before arbitrator related to grievant’s removal)).

[11] See Poplar Bluff, 72 FLRA at 89; see also VA, 71 FLRA at 534 (citing Schafer v. Dep’t of Interior, 88 F.3d 981, 986 (Fed. Cir. 1996)).

[12] Award at 3.

[13] See Response at 1-6.

[14] 5 U.S.C. § 7121(f).

[15] See VA, 71 FLRA at 534 (finding the Authority lacked jurisdiction to resolve exceptions to an award “because the claim advanced before the Arbitrator relates to the grievant’s removal”); see also Poplar Bluff, 72 FLRA at 89 (concluding that the Authority lacked jurisdiction to review an agency’s exceptions where the award related to a matter described in § 7121(f) of the Statute).