U.S. Army Armament Research, Development, and Engineering Center and National Federation of Federal Employees, Local 1437 (Authority decision, December 24, 1986)

Final FLRA decision. The Authority dismisses the union's exceptions because the arbitration award relates to an employee's removal, which is outside its exceptions jurisdiction under 5 U.S.C. § 7122(a). The decision identifies review of the underlying adverse action under 5 U.S.C. § 7703.

Plain-English summary

An Army employee was removed after submitting allegedly false travel vouchers, then reinstated under a settlement that treated his time off as a suspension. A later grievance challenged the Army's demand that he repay $6,941.73. The arbitrator found the repayment dispute outside arbitration. The Authority held that the dispute remained connected to the removal settlement, an adverse action covered by a different review route. It dismissed the union's exceptions for lack of jurisdiction without deciding whether the repayment demand was proper.

Decision snapshot

• Authority: Arbitration exceptions and adverse action limits under 5 U.S.C. §§ 7121(f), 7122(a), and 7512.
• Outcome: Union's exceptions dismissed for lack of Authority jurisdiction.
• Key point: A repayment dispute inseparable from a removal settlement followed the adverse action review route.

Full text (FLRA public release)

[ v24 p837 ]

24:0837(79)AR

The decision of the Authority follows:

24 FLRA No. 79

U.S. ARMY ARMAMENT RESEARCH,
DEVELOPMENT, AND ENGINEERING
CENTER (ARDEC), DOVER, NEW JERSEY
Activity

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (NFFE), LOCAL 1437
Union

Case No. 0-AR-1168

ORDER DISMISSING EXCEPTIONS

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Robert S. Weaver filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. Arbitrator's Award

The grievant was removed from his position for submitting false travel vouchers for movement of household goods and transportation for himself and his family. He filed a grievance protesting the removal. The grievance was settled by an agreement under which (1) the grievant was reinstated in his position without backpay and (2) the approximately six months he was off work was treated as a suspension. Following the settlement agreement, the Activity sought reimbursement from the grievant of $6,941.73, the amount he received on the basis of the alleged false documents. A grievance was filed and submitted to arbitration. The Arbitrator framed the issues before him as follows:

1. Whether or not the Finance & Accounting Officer's demand
   for recoupment of money paid to (the grievant) for his Permanent Change of Station violates the Settlement Agreement dated February 6, 1985 in FMCS File No. 84K/29968 in lieu of arbitration, and whether or not the Settlement Agreement resolved all outstanding issues.

2. If the answer to (1) is no, whether or not the Finance &
   Accounting Officer's claim is based on just cause, is fair (and) equitable.

3. The Employer raises the threshold issue of arbitrability.

The Arbitrator found essentially that the question of repayment should have been considered as part of the settlement agreement on the removal grievance and, further, that the question of repayment was within the sole jurisdiction of the Comptroller General. He denied the grievance as not arbitrable.

III. Analysis and Conclusions

The Authority has determined that it is without jurisdiction to review the Union's exceptions. 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 adverse actions under 5 U.S.C. section 7512, such as a removal. Review of an arbitration award relating to such matters must be obtained in accordance with 5 U.S.C. section 7703, that is, in the same manner and under the same conditions as if the matter involved had been decided by the Merit Systems protection Board. American Federation of Government Employees, Local 1857 and Sacramento Air Logistics Center, McClellan Air Force Base, 21 FLRA No. 4l (1986).

We find that the Arbitrator's award in this case related to the removal of the grievant, a matter covered by section 7512. The issue submitted to the Arbitrator directly concerned the interpretation and application of the settlement agreement under which the grievant's removal was changed to a suspension of approximately six months. In such circumstances, where the issue is not separate and distinct from the original issue of the grievant's removal, the Arbitrator's award relates to a matter described in section 7121(f) of the Statute. See Veterans Administration Medical Center, Hines, Illinois and Illinois Nurses Association, Hines Local Unit, 20 FLRA No. 61 (1985). See also Department of Justice, bureau of Prisons and American Federation of Government Employees, Local 1741, 23 FLRA No. 102 (1986) (dismissing exceptions to an arbitrator's award finding an adverse action grievance not arbitrable, and noting among other things that such determinations may be reviewed by the U.S. Court of Appeals for the Federal Circuit.)

Because the Arbitrator's award relates to a matter covered by section 7512 (a removal), under section 7122(a) of the Statute exceptions to the award may not be filed with the Authority and the Authority is without jurisdiction to review the exceptions.

IV. Decision

For these reasons, the Union's exceptions are dismissed.

Issued, Washington, D.C. December 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY