U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington and Bremerton Metal Trades Council (Authority decision, December 29, 1989)

Final FLRA decision. The Authority dismisses the union's exception for lack of jurisdiction because the award concerns an employee removal under 5 U.S.C. §§ 7121(f) and 7512. Review of such an arbitration award may be sought in the U.S. Court of Appeals for the Federal Circuit under 5 U.S.C. § 7703. The Authority does not decide the merits of the removal.

Plain-English summary

Puget Sound Naval Shipyard removed an employee after an investigation involving an injury and related claims. An arbitrator found the five disciplinary charges substantially proven and denied the grievance. The union argued that the arbitrator applied the wrong standard of proof. The Authority held that it lacked jurisdiction to review an arbitration award concerning removal and dismissed the exception. It did not decide the union's challenge to the proof standard.

Decision snapshot

• Authority: Removal award review limits under 5 U.S.C. §§ 7121(f), 7122(a), and 7512.
• Outcome: Union exception dismissed for lack of Authority jurisdiction.
• Key point: A removal award must be reviewed through the statutory court route, outside FLRA arbitration exception review.

Full text (FLRA public release)

[ v34 p90 ]
341:0090(21)AR

The decision of the Authority follows:

34 FLRA NO. 21

U.S. DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
BREMERTON, WASHINGTON

and

BREMERTON METAL TRADES COUNCIL

0-AR-1593

ORDER DISMISSING EXCEPTION

December 29, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an exception to the award of Arbitrator Robert A. O'Neill. The exception was filed by the United Brotherhood of Carpenters, Local Union No. 2317 on behalf of the Bremerton Metal Trades Council (the Union) and the grievant under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. For the reasons stated below, we find that the Authority is without jurisdiction to review the Union's exception and it must be dismissed.

II. Background and Arbitrator's Award

The grievant was removed from his position after he suffered an injury while working at the Puget Sound Naval Shipyard (the Agency) and filed a claim. The grounds for the removal were: (1) misstatement and concealment of facts in connection with an official record; (2) filing false testimony during an investigation; (3) filing false claims against the Government; (4) failure to observe precautions for personal safety; and (5) violations of safety regulations that endangered the grievant's life and resulted in personal injury.

The grievant filed a grievance which was submitted to arbitration. The issues before the Arbitrator were (1) whether the Agency violated the parties' agreement and Chapter 752 of the Federal Personnel Manual (FPM) when it removed the grievant; and (2) if so, whether the grievant should be reinstated and made whole for lost pay and benefits. The Arbitrator determined that each of the five charges against the grievant was "substantially proven" and supported the removal action. Arbitrator's Award at

19. Therefore, the Arbitrator denied the grievance.

III. Exception

The Union alleges that the award is contrary to law and Government-wide regulation because "the Arbitrator fail(ed) to correctly apply the provisions of Federal Personnel Manual 752, Section 7122 and Public Law 454, the Civil Service Reform Act of 1978." Union's Exception at 1. The Union asserts that the FPM and the Statute require the Agency to prove the charges used to support a removal by a preponderance of the evidence. The Union contends that the Arbitrator did not apply the preponderance of evidence standard, as required by law.

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 under 5 U.S.C. 7512, such as removals and suspensions for more than 14 days. Review of an arbitration award reflecting to those matters must be obtained in accordance with 5 U.S.C. 7703, that is, in the same manner and under the same conditions as if the matter had been decided by the Merit Systems Protection Board. See Veterans Administration and American Federation of Government Employees, Local 2610, 33 FLRA 347 (1988).

Since the Arbitrator's award relates to a matter covered by section 7512--the removal of the grievant--an exception to the award may not filed with the Authority under section 7122(a) of the Statute. Id. See also Mare Island Naval Shipyard and Federal Employees Metal Trades Council, 29 FLRA 1357 (1987). Therefore, the Authority is without jurisdiction to review the Union's exception.

V. Order

Accordingly, the Union's exception is dismissed.