National Border Patrol Council, American Federation of Government Employees, AFL-CIO, Local 1929 (Union) and U.S. Immigration and Naturalization Service, Department of Justice (Activity) (Authority decision, May 4, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

A union filed exceptions to an arbitration award involving the Immigration and Naturalization Service. The Authority found that the award concerned an adverse action covered by the statutory review route for Merit Systems Protection Board matters. It therefore lacked authority to review the award under the arbitration exceptions provision and dismissed the exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7121(f), 5 U.S.C. § 7122(a), 5 U.S.C. § 7512.
• Outcome: Arbitration exceptions dismissed for lack of Authority review jurisdiction.
• Key point: Covered adverse action awards used a different review route.

Full text (FLRA public release)

[ v05 p579 ]

05:0579(75)AR

The decision of the Authority follows:

5 FLRA No. 75

NATIONAL BORDER PATROL COUNCIL,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1929
(Union)

and

U.S. IMMIGRATION AND NATURALIZATION SERVICE,
DEPARTMENT OF JUSTICE
(Activity)

Case No. 0-AR-201

ORDER DISMISSING EXCEPTIONS

ON MARCH 5, 1981, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (THE UNION) FILED EXCEPTIONS TO THE AWARD OF ARBITRATOR C.W.
"BILL" TYER WITH THE AUTHORITY PURSUANT TO SECTION 2425.1 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 C.F.R. 2425.1(1980)) AND SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)). SUBSEQUENTLY, THE AGENCY FILED AN OPPOSITION TO THE
UNION'S EXCEPTIONS. FOR THE REASONS INDICATED BELOW, THE UNION'S
EXCEPTIONS MUST BE DISMISSED.

SECTION 7122(A) PROVIDES IN RELEVANT 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) ARE THOSE COVERED UNDER 5
U.S.C. 4303 AND 7512. SECTION 7512, THE SECTION APPLICABLE IN THE
INSTANT CASE, COVERS SPECIFIC ADVERSE ACTIONS, INCLUDING SUSPENSIONS FOR
MORE THAN 14 DAYS. PURSUANT TO SECTION 7121(F), REVIEW OF AN
ARBITRATION AWARD RELATING TO SUCH MATTERS MUST BY OBTAINED IN THE SAME
MANNER AND UNDER THE SAME CONDITIONS AS JUDICIAL REVIEW OF A FINAL
DECISION OF THE MERIT SYSTEMS PROTECTION BOARD PURSUANT TO 5 U.S.C.
7703.

ON THE BASIS OF THE UNION'S EXCEPTIONS, IT APPEARS THAT THE
ARBITRATOR'S AWARD IN THIS CASE RELATES TO A MATTER COVERED BY 5 U.S.C.
7512. AS A MATTER COVERED BY 5 U.S.C. 7512, THE ARBITRATOR'S AWARD IS
"AN AWARD RELATING TO A MATTER DESCRIBED IN SECTION 7121(F)" AND IS THUS
NOT SUBJECT TO REVIEW BY THE AUTHORITY (5 U.S.C. 7122(A)). FURTHER,
SECTION 2425.3(B)(2)(1980)), EXPRESSLY PRECLUDES THE AUTHORITY FROM
CONSIDERING AN EXCEPTION WITH RESPECT TO AN AWARD RELATING TO A MATTER
COVERED UNDER 5 U.S.C. 7512. CONSEQUENTLY, THE AUTHORITY HAS NO BASIS
UPON WHICH TO REVIEW THE ARBITRATOR'S AWARD.

ACCORDINGLY, AND APART FROM OTHER CONSIDERATIONS,

IT IS HEREBY ORDERED THAT THE UNION'S EXCEPTIONS BE, AND THEY HEREBY
ARE, DISMISSED.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., MAY 4, 1981

JAMES J. SHEPARD, EXECUTIVE DIRECTOR