57 FLRA No. 108

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

Decision by Member Pope for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to a supplemental award of Arbitrator Emily Maloney filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. Both parties submitted responses to an Order to Show Cause why the Agency's exceptions should not be dismissed for lack of jurisdiction. For the following reasons, we conclude that the Authority lacks jurisdiction over this matter and dismiss the Agency's exceptions.

II.     Background and Arbitration Awards

      In the initial award, the Arbitrator sustained the grievance over the grievant's removal on the basis that the Agency unlawfully discriminated against the grievant in violation of the Rehabilitation Act. The Arbitrator ordered the grievant to be reinstated and made whole and also retained jurisdiction over implementation of the award. The Authority concluded that it lacked jurisdiction over the Agency's exceptions to the initial award because the initial award related to the grievant's removal, a matter excluded under §§ 7122(a) and 7121(f) of the Statute. [n1]  See United States Dep't of Transp., FAA, 54 FLRA 235 (1998) (FAA).

      Subsequently, the Union filed an unfair labor practice (ULP) charge claiming that the Agency had not complied with the initial arbitration award. The parties informally settled the ULP with the Agency agreeing to comply with the initial award by reinstating the grievant and by making him whole. However, because the parties subsequently could not agree on the make whole remedies to which the grievant was entitled, the parties re-submitted the matter to the Arbitrator, who set forth the following issue: "[t]o what damages, if any, is grievant . . . entitled." Supplemental Award at 4.

      In the supplemental award, the Arbitrator rejected the Agency's contention that the issues of backpay and benefits had been disposed of in the parties' settlement agreement and awarded compensatory damages, backpay with interest, front pay, litigation and medical costs, retention in employment, and attorney fees.

III.     Positions of the Parties

A.      Agency

      In its response to the Show Cause Order, the Agency argues that the Authority has jurisdiction because the supplemental award does not "relate to" the underlying removal action within the meaning of § 7122(a) of the Statute, but rather, enforces the parties' settlement agreement. According to the Agency, the Authority has exclusive jurisdiction over such enforcement actions. Further, relying on AFGE, Local 2986, 51 FLRA 1549 (1996) (Member Armendariz dissenting) (State of Oregon), the Agency argues that the supplemental award of damages in this case is similar to the award of severance pay in State of Oregon, over which the Authority asserted jurisdiction.

      The Agency also argues that the supplemental award is not related to the underlying removal action within the meaning of § 7122(a) because entitlement to compensatory and other equitable damages depends on factors other than the removal. The Agency further claims that the Arbitrator awarded relief for incidents arising after the grievant's removal. [ v57 p581 ]

B.     Union

      As relevant here, the Union claims that the Authority lacks jurisdiction in this case because the supplemental award implements the initial award. In this regard, the Union asserts that the supplemental award relates to the underlying removal within the meaning of § 7122(a) of the Statute.

IV.     Analysis and Conclusions

      Section 7122(a) of the Statute provides that a party may not file exceptions with the Authority to an arbitration award that "relates to" a matter described in § 7121(f). See supra note 1. For employees, such as the grievant, who are in "other personnel systems," § 7121(f) applies to matters similar to those covered under 5 U.S.C. § 4303 or § 7512. [n2]  The Authority has held that an award relates to a matter described in § 7121(f) when it resolves, or is "inextricably intertwined" with, a § 4303 or § 7512 matter. See VAMC, Newington, CT, 53 FLRA 440, 441-42 (1997); United States Dep't of the Army, Army Air Defense Ctr., Fort Bliss, Tex., 35 FLRA 970, 971-72 (1990).

      In FAA, the Authority dismissed the Agency's exceptions to the initial award, where the Arbitrator ordered, among other things, that the grievant be made whole for his unlawful removal. As relevant here, the Authority concluded that the initial award related to the grievant's removal, as described in § 7121(f) of the Statute. See FAA, 54 FLRA at 238. In the supplemental award, the Arbitrator specified the make whole remedies, which were awarded in the initial award. Consequently, the supplemental award resolves the underlying removal action and therefore relates to a matter described in § 7121(f), within the meaning of § 7122(a) of the Statute.

      We reject the Agency's argument that the Authority has jurisdiction over this matter because the supplemental award resolves an issue covered by the settlement agreement. On its face, the supplemental award resolves only the issue of remedies for the removal, and any reference by the Arbitrator to the parties' settlement agreement was limited to resolving that issue. Moreover, even if the award could be construed as enforcing the parties' settlement agreement, that fact alone would not confer jurisdiction upon the Authority. In this regard, the Authority has found that awards that enforce settlement agreements relating to a removal action are "inextricably intertwined" with the original removal action. See AFGE, Local 2094, 51 FLRA 1612 (1996); United States Army Armament Research, Dev., and Eng'g Ctr. (ARDEC), Dover, N.J., 24 FLRA 837, 838-39 (1986). Further, the Agency has not demonstrated that the fact that the Arbitrator considered the parties' informal settlement of a ULP affects the application of § 7122(a) to the award. Therefore, these Agency arguments fail to establish that the supplemental award does not "relate to" the removal within the meaning of § 7122(a) of the Statute.

      Further, State of Oregon, on which the Agency relies, is distinguishable. [n3]  In State of Oregon, the Authority considered whether an award regarding severance pay related to the underlying removal. Unlike that award, however, the supplemental award in this case specifically provides remedies for an unlawful removal, which is a matter excluded from the Authority's jurisdiction under § 7122(a). Also, the Agency's assertion that entitlement to equitable relief and compensatory damages depends on factors other than the removal itself is not persuasive. In particular, the Agency's argument ignores the facts that the Arbitrator found that the Agency violated the Rehabilitation Act and that compensatory damages are appropriate remedies for such a violation. See 42 U.S.C. § 1981a(a)(1) (1994). Finally, the Agency's assertion that the remedies were awarded for actions occurring after the grievant's removal is unsupported. On its face, the supplemental award provides a remedy for the grievant's removal and makes no reference to any subsequent actions. Therefore, the Authority lacks jurisdiction in this matter under § 7122(a) of the Statute.

V.     Decision

      The Agency's exceptions are dismissed.

   5 U.S.C. § 7122(a) provides, in relevant part, that "[e]ither 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)." 5 U.S.C. § 7121(f) provides, in relevant part:

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 matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems . . . judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures.

   These disciplinary matters are set forth in 5 U.S.C. § 4303, which covers removals and reductions-in-grade for unacceptable performance, and 5 U.S.C. § 7512, which covers removals, suspensions for more than 14 days, reductions either in grade or pay, or furloughs for 30 days or less.

   In State of Oregon, 51 FLRA at 1558-59, Member Armendariz was of the view that the Authority lacked jurisdiction under § 7122(a) of the Statute to resolve the agency's exceptions. As such, he sees no need to distinguish State of Oregon.