International Organization of Masters, Mates, and Pilots, Panama Canal Branch and Panama Canal Commission (Authority decision, December 30, 1987)

Final FLRA decision. The Authority dismisses the union's exception because it lacks jurisdiction to review an arbitration award concerning a removal from service. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. The decision describes review of removal-related arbitration awards under 5 U.S.C. § 7703.

Plain-English summary

The Panama Canal Commission removed an employee who then challenged the removal before the Merit Systems Protection Board. After that board upheld the removal, the union filed a grievance, but an arbitrator found it could not be arbitrated under the parties' agreement. The union asked the Authority to order a new arbitration on the merits. The Authority held that 5 U.S.C. § 7122(a) excludes awards involving removals from its review, so it dismissed the exception for lack of jurisdiction. The decision says review of such arbitration awards may instead be sought in the Federal Circuit under 5 U.S.C. § 7703.

Decision snapshot

• Authority: Arbitration exception jurisdiction under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Union's exception dismissed for lack of jurisdiction; no review of the removal's merits.
• Key point: An arbitration award concerning a removal from service cannot be challenged through an exception to the Authority.

Full text (FLRA public release)

[ v30 p646 ]

30:0646(78)AR

The decision of the Authority follows:

30 FLRA NO. 78
30 FLRA 646

30 DEC 1987

INTERNATIONAL ORGANIZATION OF
MASTERS, MATES, AND PILOTS
ILA, AFL-CIO
PANAMA CANAL BRANCH

Union

and

PANAMA CANAL COMMISSION

Agency

Case No. 0-AR-1406

ORDER DISMISSING EXCEPTION

This matter is before the Authority on an exception to the award of Arbitrator John M. Stochaj. The Arbitrator found that the grievant's removal from service was not arbitrable under the parties' collective bargaining agreement. The exception was filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Because the Arbitrator's award concerns a removal from service, we find that we are without jurisdiction in the matter. Accordingly, we dismiss the Union's exception.

The Agency removed the grievant and informed him of his right to contest the action under the negotiated grievance procedure of the parties' agreement or the appeal procedures of the Merit Systems Protection Board (MSPB). The grievant appealed to the MSPB. The MSPB upheld the removal. The Union then grieved and sought to arbitrate the matter. The Arbitrator ruled that the grievance was not arbitrable under the parties' agreement because the removal had been appealed to the MSPB. The Union then filed the instant exception, urging the Authority to direct the parties to select a different arbitrator for a determination on the merits of the dispute.

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).

The matters described in section 7121(f) of the Statute include adverse actions (such as removals) under 5 U.S.C. 7512. Review of arbitration awards relating to such matters, like review of decisions of the MSPB, may be sought by appeal to the U.S. Court of Appeals for the Federal Circuit, in accordance with 5 U.S.C. 7703. Since the Arbitrator's award concerns a matter covered by 5 U.S.C. 7512, that is, the removal of the grievant from service, an exception to the award may not be filed with the Authority under 7122(a) of the Statute. The Authority, therefore, is without jurisdiction to review the Union's exception. U.S. Department of Transportation, Federal Aviation Administration, Eastern Region and Professional Airways Systems Specialists, MEBA, AFL - CIO, 28 FLRA 345 (1987).

Accordingly, the Union's exception is dismissed.

Issued, Washington, D.C., December 30, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY