American Federation of Government Employees, Local 2904 and U.S. Department of the Navy, U.S. Marine Corps Financial Center, Kansas City, Missouri (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 validity of the last chance agreement.

Plain-English summary

A Marine Corps Financial Center employee signed a last chance agreement that delayed a proposed removal while she sought help for alcohol related problems. The center later removed her for violating the agreement. An arbitrator found the agreement valid and dismissed her grievance. The union argued that the agreement could not be enforced without its written consent. The Authority held that it lacked jurisdiction over an arbitration award concerning removal and dismissed the exception without addressing the union's argument.

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: The Authority could not review the agreement challenge because the award concerned removal.

Full text (FLRA public release)

[ v34 p93 ]
34:0093(22)AR

The decision of the Authority follows:

34 FLRA NO. 22

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2904

and

U.S. DEPARTMENT OF THE NAVY
U.S. MARINE CORPS FINANCIAL CENTER
KANSAS CITY, MISSOURI

0-AR-1784

ORDER DISMISSING EXCEPTION

December 29, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator J.C. Fogelberg. The Arbitrator dismissed the grievance over the grievant's removal. The Arbitrator determined that the grievant had waived her grievance rights when she executed a "last chance" agreement.

AFGE Local 2904 filed an exception 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 Marine Corps Financial Center, Kansas City, Missouri (the Activity) did not file an opposition to the exception.

For the reasons stated below, we are without jurisdiction under section 7122(a) of the Statute to review the Union's exception.

II. Background and the Arbitrator's Award

On April 28, 1988, the grievant and the Activity executed an agreement. Under the agreement, the grievant agreed to seek professional assistance for her problems with alcohol, and the Activity agreed to delay the decision on the proposed removal of the grievant and afford the grievant an opportunity to resolve her problems. The grievant also agreed to the reinstatement of the removal action is she violated the agreement and to the waiver of her right to grieve the removal action if it was reinstated.

On December 2, 1988, the grievant received a "Notice of Removal" which reinstated the removal action because she had violated the provisions of the April 28 agreement. A grievance was filed over the grievant's removal and submitted to arbitration on the threshold issue of the validity of the April 28 agreement.

The Arbitrator determined that the agreement was valid. Accordingly, the Arbitrator dismissed the grievance.

III. Exception

The Union contends that the award is contrary to the Statute. The Union argues that the Arbitrator erred by enforcing an agreement which was entered into without the written consent of the Union.

IV. Discussion

We are without jurisdiction under section 7122(a) of the Statute to review the Union's exception.

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

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) include serious adverse actions covered under 5 U.S.C. 7512, such as removals. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. 7703.

Because the award relates to the removal of the grievant, a matter which is covered under 5 U.S.C. 7512 and described in section 7121(f), exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Consequently, we are without jurisdiction to review the Union's exception and it is hereby dismissed.

V. Order

The Union's exception is dismissed.