Veterans Administration Medical Center, New York and American Federation of Government Employees, Local 2094 (Authority decision, January 29, 1982)

Final FLRA decision. The Authority dismissed the union's exceptions to a removal arbitration award for lack of jurisdiction. Under 5 U.S.C. § 7123(a), the court of appeals review provision generally excludes an Authority order concerning an arbitral award under § 7122 unless it involves an unfair labor practice. This order concerns jurisdiction over a removal award; the Authority identified 5 U.S.C. § 7703 as the route for judicial review of that award.

Plain-English summary

An arbitrator found that a Veterans Administration medical center did not violate its agreement by removing an employee for absence without leave. AFGE Local 2094 filed exceptions to the award with the Authority. The Authority held that 5 U.S.C. § 7122(a) excludes removal awards from its arbitration review jurisdiction because removal is an adverse action covered by § 7121(f) and § 7512. It dismissed the exceptions without reaching the award's merits and said the grievant could seek judicial review of the award under § 7703.

Decision snapshot

• Authority: Arbitration review limits under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Union exceptions dismissed for lack of Authority jurisdiction.
• Key point: Removal arbitration awards are reviewed through the route for covered adverse actions, not Authority arbitration exceptions.

Full text (FLRA public release)

[ v07 p788 ]

07:0788(134)AR

The decision of the Authority follows:

7 FLRA No. 134

VETERANS ADMINISTRATION
MEDICAL CENTER, NEW YORK, N.Y.
(ACTIVITY)

and

LOCAL NO. 2094, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES
(UNION)

Case No. O-AR-238

ORDER DISMISSING EXCEPTIONS

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR WILLIAM W. WAITE FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)). IN HIS AWARD, THE ARBITRATOR FOUND THAT THE ACTIVITY DID NOT
VIOLATE THE PARTIES' AGREEMENT WHEN IT REMOVED THE GRIEVANT FROM THE
FEDERAL SERVICE FOR BEING ABSENT WITHOUT LEAVE. FOR THE REASONS THAT
FOLLOW, THE AUTHORITY IS WITHOUT JURISDICTION TO REVIEW THE UNION'S
EXCEPTIONS AND THE EXCEPTIONS THEREFORE MUST BE DISMISSED.

SECTION 7122(A) OF THE STATUTE PROVIDES, IN PERTINENT PART:

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).

AS RELEVANT TO THIS CASE, THE MATTERS DESCRIBED IN SECTION 7121(F) OF
THE STATUTE INCLUDE THOSE COVERED UNDER 5 U.S.C. 7512 WHICH, IN TURN,
APPLIES TO SPECIFIED ADVERSE ACTIONS INCLUDING REMOVALS. REVIEW OF AN
ARBITRATION AWARD RELATING TO SUCH MATTERS MUST BE OBTAINED IN
ACCORDANCE WITH 5 U.S.C. 7703, I.E., IN THE SAME MANNER AND UNDER THE
SAME CONDITIONS AS IF THE MATTER INVOLVED HAD BEEN DECIDED BY THE MERIT
SYSTEMS PROTECTION BOARD. (5 U.S.C. 7703 PROVIDES FOR JUDICIAL REVIEW
OF FINAL DECISIONS OF THE MSPB.)

SINCE THE ARBITRATOR'S AWARD RELATES TO A MATTER COVERED BY 5 U.S.C.
7512, I.E., THE REMOVAL OF THE GRIEVANT, UNDER SECTION 7122(A) OF THE
STATUTE, EXCEPTIONS TO THE AWARD MAY NOT BE FILED WITH THE AUTHORITY.
CONSEQUENTLY, THE AUTHORITY IS WITHOUT JURISDICTION TO REVIEW THE
UNION'S EXCEPTIONS. RATHER, THE GRIEVANT MAY SEEK JUDICIAL REVIEW OF
THE ARBITRATOR'S AWARD PURSUANT TO 5 U.S.C. 7703.

ACCORDINGLY, AND APART FROM OTHER CONSIDERATIONS, IT IS ORDERED THAT
THE UNION'S EXCEPTIONS BE, AND THEY HEREBY ARE, DISMISSED.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., JANUARY 29, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR