U.S. Department of the Army, Army Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900 (Authority decision, April 27, 1990)

Final FLRA decision. The Authority dismissed the union's exceptions to an arbitration award concerning an employee's removal for lack of jurisdiction. 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. This decision does not decide an unfair labor practice.

Plain-English summary

The Army Reserve Personnel Center removed an employee on several misconduct charges, and an arbitrator denied the resulting grievance. The union challenged the award before the Authority, disputing the proof and the arbitrator's impartiality. The Authority held that removal is a serious adverse action covered by 5 U.S.C. § 7512 and that section 7122(a) excludes such arbitration awards from its exceptions jurisdiction. It dismissed the exceptions without deciding the union's arguments about the removal or the hearing.

Decision snapshot

• Authority: 5 U.S.C. §§ 7121(f), 7122(a), and 7512.
• Outcome: Union's exceptions dismissed for lack of Authority jurisdiction.
• Key point: Exceptions to an arbitration award about a removal cannot be filed with the Authority under section 7122(a).

Full text (FLRA public release)

[ v35 p824 ]
35:0824(87)AR

The decision of the Authority follows:

35 FLRA No. 87

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE
ARMY

ARMY RESERVE PERSONNEL
CENTER

ST. LOUIS, MISSOURI

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 900

(Union)

0-AR-1797

ORDER DISMISSING
EXCEPTIONS

April 27, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Gerard A. Fowler. The Arbitrator denied the grievance over the grievant's removal.

The Union filed exceptions to the award 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 Agency filed a Motion to Dismiss the exceptions.

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

II. Background and Arbitrator's Award

The Agency removed the grievant from his position on the following grounds: (1) violation of the Agency's policy prohibiting sexual harassment, (2) absence without leave (AWOL) on August 2, 1988, (3) insubordination on September 21, 1988, for refusing to help his supervisor perform a task and leaving the work area, and (4) failure to follow instructions in a timely manner.

The grievant filed a grievance contesting his removal, and the grievance was submitted to arbitration. The Arbitrator determined that the Agency's charges against the grievant were valid and rejected the Union's request that the penalty be reduced. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union asserts that the Agency failed to prove that the grievant was unsuitable for employment. Additionally, the Union notes that the grievant was "harassed, followed and denied in connection with his medical treatment" for injuries sustained in military service. Exceptions at 1. The Union also asserts that the Arbitrator "failed to remain impartial and unbiased." Id. at 2.

B. Agency's Motion to Dismiss

The Agency asserts that the exceptions must be dismissed because the award involves a removal action under 5 U.S.C. § 7512.

IV. Discussion

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

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) 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 Arbitrator's award relates to the grievant's removal, which is 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 exceptions and we will dismiss them. See, for example, U.S. Department of the Army, Army Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900, 34 FLRA 96 (1989).

V. Order

The Union's exceptions are dismissed.

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