National Treasury Employees Union, Chapter 202 and Department of the Treasury, Financial Management Service, Headquarters Office (Authority decision, August 31, 1988)

Final FLRA decision. The Authority dismisses the agency's exceptions for lack of jurisdiction because the arbitration award concerns a federal employee's removal. Under 5 U.S.C. §§ 7121(f), 7122(a), and 7703, review of such an award may be sought in the U.S. Court of Appeals for the Federal Circuit, rather than through FLRA exceptions. The Authority did not decide the merits of the agency's objections.

Plain-English summary

The Financial Management Service removed an employee for alleged drinking on duty and unauthorized use of a government vehicle that caused damage. An arbitrator rejected the drinking charge, sustained the vehicle charge, and reduced the removal to a 30-day suspension subject to conditions concerning an alcohol-use evaluation. The agency challenged the award before the Authority. The Authority held that an award relating to a removal falls outside its arbitration-exception jurisdiction, even when the arbitrator reduces the penalty. It dismissed the exceptions without reviewing their merits.

Decision snapshot

• Authority: Removal review under 5 U.S.C. §§ 7121(f), 7122(a), and 7703.
• Outcome: Agency exceptions dismissed for lack of FLRA jurisdiction.
• Key point: The award related to a removal, placing review on the adverse-action path.

Full text (FLRA public release)

[ v32 p1075 ]
32:1075(147)AR

The decision of the Authority follows:

32 FLRA No. 147

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES

UNION, CHAPTER 202

Union

and

DEPARTMENT OF THE TREASURY

FINANCIAL MANAGEMENT SERVICE

HEADQUARTERS OFFICE

Activity

Case No. 0-AR-1545

ORDER DISMISSING EXCEPTIONS

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator M. David Vaughn. The Arbitrator mitigated the grievant's removal to a 30-day suspension contingent upon the grievant's agreement to several conditions.

The Agency filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.

Because the Arbitrator's award concerns the removal of the grievant from the Federal service, we are without jurisdiction to review the Agency's exceptions.

II. Background and Arbitrator's Award

The Activity removed the grievant for (1) consuming alcoholic beverages on duty and (2) operating a Government vehicle without authorization resulting in its damage. A grievance was filed challenging the removal. The grievance was not resolved and was submitted to arbitration.

The Arbitrator found that the Activity had not proved the charge that the grievant consumed alcoholic beverages on duty. The Arbitrator found that the Activity had proved that the grievant operated a Government vehicle without authorization and damaged the vehicle. The Arbitrator concluded that an appropriate penalty for unauthorized use of and damage to the Government vehicle was a 30-day suspension. However, the Arbitrator conditioned the grievant's reinstatement with backpay on the grievant's agreement to obtain a medical and/or psychological evaluation relating to his use of alcohol. The Arbitrator set forth additional conditions to the grievant's reinstatement if the results of the evaluations indicated that the grievant is, or probably is, an alcoholic, alcohol-dependent, or alcohol-abusing.

III. Positions of the Parties

The Agency contends that the award (1) violates law, (2) exceeds the Arbitrator's authority, (3) does not draw its essence from the Arbitrator's findings of fact, and (4) fails to completely apply the factors which must be considered in determining the appropriateness of the penalty.

The Union contends that the Authority is without jurisdiction to review the Agency's exceptions.

IV. Discussion

Section 7122(a) of the Statute provides, in pertinent part:

Either party to arbitration under [the Statute] 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 [the Statute]).

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 relates to the grievant's removal, which is a matter covered by 5 U.S.C. § 7512, exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Therefore, we are without jurisdiction to review the Agency's exceptions, and we will order them dismissed. See, for example, Department of the Army, United States Army Missile Command, Redstone Arsenal, Alabama and AFGE Local 1858, AFL-CIO, Redstone Arsenal, Alabama, 31 FLRA 1241 (1988).

V. Order

The Agency's exceptions are dismissed.

Issued, Washington, D.C.,

_____
Jerry L. Calhoun,
Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS
AUTHORITY

FOOTNOTES:
(If blank, the decision does not
have footnotes.)