National Treasury Employees Union Chapter 49 and Internal Revenue Service, Indianapolis District (Authority decision, September 25, 1986)

Final FLRA decision. The Authority dismisses the IRS's exceptions to an arbitrator's disclosure ruling for lack of jurisdiction. The ruling relates to a reduction in grade for unacceptable performance under 5 U.S.C. § 4303. Under 5 U.S.C. §§ 7121(f) and 7122(a), review of an award relating to that matter follows the judicial-review provisions of § 7703 as it would for a Merit Systems Protection Board decision.

Plain-English summary

An IRS Indianapolis District employee grieved a reduction in grade for unacceptable performance. Before hearing the merits, an arbitrator ordered the IRS to disclose much of the information the union requested. The IRS filed exceptions to that disclosure ruling with the Authority. The Authority found that the ruling remained tied to the reduction in grade, a personnel action excluded from its arbitration exception jurisdiction. It dismissed the exceptions without deciding whether the disclosure order was correct.

Decision snapshot

• Authority: Review exclusion for covered personnel actions under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Agency exceptions dismissed for lack of Authority jurisdiction.
• Key point: The disclosure ruling was part of a covered reduction in grade case and could not be reviewed through FLRA exceptions.

Full text (FLRA public release)

[ v23 p420 ]

23:0420(61)AR

The decision of the Authority follows:

23 FLRA No. 61

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 49
Union

and

INTERNAL REVENUE SERVICE
INDIANAPOLIS DISTRICT
Activity

Case No. 0-AR-1199

ORDER DISMISSING EXCEPTIONS

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to a ruling of Arbitrator Alvin L. Goldman filed by the Activity 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 matter submitted to arbitration concerned the grievant's reduction in grade for unacceptable performance under 5 U.S.C. Section 4303. Before considering the merits of the grievance, the Arbitrator issued a final ruling and opinion on the Union's motion to require the Activity to make a prehearing disclosure of certain documents and information. The Arbitrator essentially sustained the motion and ordered the Activity to produce a substantial portion of the material requested. The Activity's exceptions in this case are to the Arbitrator's final ruling on the motion.

III. ANALYSIS AND CONCLUSIONS

We conclude that we are without jurisdiction to review the Activity's exceptions. We find, apart from any consideration of whether a challenge to the ruling is interlocutory, that the ruling on the Union's motion is not separate and distinct from the matter of the grievant's reduction in grade. Section 7122(a) of the Statute pertinently provides:

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. Section 4303 which applies to a reduction in grade for unacceptable performance. Review of an arbitration award relating to such matters must be obtained in the same manner and under the same conditions as if the matter involved had been decided by the Merit Systems Protection Board. Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 16 FLRA 34 (1984).

Because we find that the Arbitrator's final ruling on the Union's motion relates to a matter covered by section 4303, exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. See Headquarters, Department of the Army, Washington, D.C. and U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, 22 FLRA No. 71 (1986), slip op. at 5 n.2 and Veterans Administration Medical Center, Hines, Illinois and Illinois Nurses Association, Hines Local Unit, 20 FLRA No. 61 (1985). In VA Medical Center, Hines, Illinois, the Authority found that a supplemental award of attorney fees was not separate and distinct from the original award which related to a matter described in section 7121(f) of the Statute. Consequently, the Authority ruled that it was without jurisdiction to resolve the exceptions to the award of attorney fees and the exceptions were dismissed.

IV. DECISION

Accordingly, the Activity's exceptions are dismissed.

Issued, Washington, D.C., September 25, 1986.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY