Department of the Army, U.S. Army Missile Command, Redstone Arsenal and American Federation of Government Employees, Local 1858 (Authority decision, April 27, 1988)

Final FLRA decision. The Authority dismisses the union's exceptions to an arbitration award concerning a federal employee's removal because it lacks jurisdiction under 5 U.S.C. § 7122(a). Review of the award may be sought in the U.S. Court of Appeals for the Federal Circuit under 5 U.S.C. §§ 7121(f) and 7703, as described in the decision.

Plain-English summary

An arbitrator upheld the removal of an Army Missile Command employee after an extended absence without leave. The union challenged the award before the Authority. The Authority held that removal is an adverse action covered by 5 U.S.C. § 7512 and that the labor statute excludes such arbitration awards from its exceptions process. It dismissed the exceptions without considering the union's factual and legal objections.

Decision snapshot

• Authority: 5 U.S.C. §§ 7512, 7121(f), and 7122(a).
• Outcome: Union's exceptions dismissed for lack of Authority jurisdiction.
• Key point: The Authority cannot review exceptions to an arbitration award concerning an employee's removal under the adverse action system.

Full text (FLRA public release)

[ v31 p1241 ]
31:1241(110)AR

The decision of the Authority follows:

31 FLRA NO. 110

DEPARTMENT OF THE ARMY
UNITED STATES ARMY MISSILE COMMAND
REDSTONE ARSENAL, ALABAMA

Activity

and

AFGE LOCAL 1858, AFL-CIO
REDSTONE ARSENAL, ALABAMA

Union

Case No. 0-AR-1462

ORDER DISMISSING EXCEPTIONS

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator J. Thomas King. The Arbitrator denied the grievance and sustained the grievant's removal from the Federal service. Exceptions were 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 the removal of the grievant from the Federal service, we are without jurisdiction to review the Union's exceptions.

II. Background and Arbitrator's Award

Following a 2-week period of absence without leave, the Agency directed the grievant to report for duty. The grievant failed to report, but he advised the Agency that he was absent due to a drug-related problem. At the grievant's request, the Agency granted him a leave of absence on the condition that he enroll in an alcohol and drug abuse program and make satisfactory progress toward rehabilitation. However, because the grievant remained absent without leave and failed to comply with the Agency's requirements for a leave of absence, the Agency removed the grievant from Federal service. The grievant filed a grievance concerning his termination, asserting that extenuating circumstances surrounded the reasons cited by the Agency for his removal. He alleged violations of the parties' collective bargaining agreement and the Federal Personnel Manual (FPM).

The Arbitrator found that the grievant was absent without leave for more than 3 months. Further, the Arbitrator found that the grievant failed in his duty to keep management informed as to his ability to work, his need for leave, and any problems associated with his enrollment in an alcohol and drug abuse program. The Arbitrator also found that the Agency gave the grievant an opportunity for drug abuse treatment and counseling. Thus, the Arbitrator concluded that the Agency did not violate the parties' collective bargaining agreement.

III. Exceptions

The Union contends that the award is deficient under section 7122(a) of the Statute "because it is contrary to law and regulation (material facts)." Exceptions at 12. According to the Union, the Arbitrator did not base his decision on material facts, and, therefore, it must be set aside.

The Agency did not file an opposition to the Union's exceptions.

IV. Discussion

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 Merit Systems Protection Board, may be sought by appeal to the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. 7703.

Because the Arbitrator's award concerns a matter covered by 5 U.S.C. 7512, that is, the grievant's removal from the Federal service, exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. The Authority, therefore, is without jurisdiction to review the Union's exceptions. See, for example, U.S. Army Missile Command, Redstone Arsenal and American Federation of Government Employees, Local 1858, 31 FLRA 715 (1988).

V. Order

The Union's exceptions are dismissed.

Issued, Washington, D.C., April 27, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY