Department of Justice, Bureau of Prisons and American Federation of Government Employees, Local 1741 (Authority decision, October 31, 1986)

Final FLRA decision. The Authority dismisses the union's arbitration exceptions for lack of jurisdiction. Under 5 U.S.C. §§ 7121(f) and 7122(a), an award concerning an employee removal follows the review route for Merit Systems Protection Board matters, rather than FLRA review of arbitration exceptions. The Authority identifies the Federal Circuit as the court that may review procedural arbitrability in such a matter.

Plain-English summary

An arbitrator dismissed a prison employee's removal grievance because the union had not followed its contract's procedure for invoking arbitration. The union filed exceptions with the Authority. The Authority held that a removal is an adverse action excluded from its arbitration exception jurisdiction even when the arbitrator decides only procedural arbitrability. It dismissed the exceptions and identified review in the Federal Circuit as the applicable route.

Decision snapshot

• Authority: Arbitration review limits under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Union exceptions dismissed for lack of jurisdiction.
• Key point: FLRA cannot review an arbitration award about an employee removal through its ordinary exceptions process.

Full text (FLRA public release)

[ v23 p802 ]

23:0802(102)AR

The decision of the Authority follows:

23 FLRA No. 102

DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1741
Union

Case No. 0-AR-1236

ORDER DISMISSING EXCEPTIONS

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Barry C. Brown 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. BACKGROUND AND ARBITRATOR'S AWARD

The matter submitted to arbitration concerned the grievant's removal from the Federal Service. Before addressing the merits of the grievance, the Arbitrator determined that the Union had failed to comply with the procedural requirements of the parties' collective bargaining agreement for invoking arbitration and that these procedural defects were highly prejudicial to the Agency's rights. Accordingly, he concluded that the grievance was not arbitrable and that it must be dismissed. The Union's exceptions in this case are to the Arbitrator's determination that the grievance was not arbitrable.

II. ANALYSIS AND CONCLUSIONS

We conclude that we are without jurisdiction to review the Union's exceptions. Section 7122(a) provides, in part:

Either part 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 the same manner and under the same conditions as if the matter involved had been decided by the Merit Systems Protection Board. Veterans Administration Medical Center, Kansas City, Missouri and American Federation of Government Employees, 23 FLRA No. 40 (1986). In that regard, determinations of procedural arbitrability by arbitrators in grievances concernsing adverse actions under 5 U.S.C. Section 7512 may be reviewed by the U.S. Circuit Court of Appeals for the Federal Circuit. See Huey v. Department of Health and Human Services, 782 F.2d 1575 (Fed. Cir. 1986).

Because the Arbitrator's award in this case relates to the matter of the grievant's removal, exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. To the extent that the Authority's decision in Naval Ordnance Station Louisville, Kentucky and Lodge No. 830, International Association of Machinists and Aerospace Workers, 11 FLRA 19, 20 n.3 (1983), is contrary to our holding in this case, that decision will no longer be followed.

IV. DECISION

Accordingly, the Union's exceptions are dismissed.

Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY