American Federation of Government Employees and U.S. Department of Defense, Army and Air Force Exchange Service (Authority decision, June 10, 1991)

Final FLRA decision. The Authority dismisses the union’s exception to an arbitrator’s denial of attorney fees for lack of jurisdiction. This is an order concerning an arbitral award under 5 U.S.C. § 7122. The judicial review provision in 5 U.S.C. § 7123(a) excludes such orders unless they involve an unfair labor practice; this decision does not state that it involves one.

Plain-English summary

An arbitrator reduced an Exchange Service employee’s downgrade to a 60-day suspension with backpay but denied the union’s request for attorney fees. The union challenged only the fee denial. The Authority held that the underlying downgrade of a nonappropriated fund employee was a serious adverse action under another personnel system, a category excluded from its arbitration review jurisdiction. Because the fee issue related to that action, the Authority dismissed the exception without deciding whether fees were warranted.

Decision snapshot

• Authority: Arbitration jurisdiction under 5 U.S.C. §§ 7122(a) and 7121(f).
• Outcome: Union’s attorney fee exception dismissed for lack of jurisdiction.
• Key point: A fee ruling tied to an excluded adverse action could not be reviewed through the Authority’s arbitration exception process.

Full text (FLRA public release)

[ v41 p82 ]

41:0082(10)AR

The decision of the Authority follows:

41 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

and

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

(Agency)

0-AR-2050

ORDER DISMISSING EXCEPTION

June 10, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Edmund J. Flynn filed by the Union 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 an opposition to the Union's exception.(*)

As part of an award reducing a downgrade of an employee to a 60-day suspension, the Arbitrator denied the Union's request for attorney fees. The Union excepts only to the Arbitrator's denial of attorney fees.

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

II. Background and Arbitrator's Award

A grievance filed over a grievant's downgrade was submitted to arbitration. The Arbitrator reduced the downgrade to a 60-day suspension with backpay and, as relevant here, denied the Union's request for attorney fees.

III. Positions of the Parties

The Union asserts that the Arbitrator's denial of attorney fees is contrary to law because, among other things, the Agency "either knew or should have known that the penalty it imposed on the grievant . . . could not be justified or sustained on review[.]" Exceptions at 1-2.

The Agency contends that the Union is not entitled to attorney fees. The Agency argues that it "can not be said to have failed to make a reasonable inquiry nor to have failed to have determined that its action was without merit . . . ." Opposition at 22.

IV. Analysis and Conclusions

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) of the Statute include serious adverse actions covered under 5 U.S.C. § 7512, such as downgrades. Section 7121(f) also includes actions similar to those covered by 5 U.S.C. § 7512 which arise under "other personnel systems."

The award concerns the downgrade of an employee of the Army and Air Force Exchange Service, a nonappropriated fund (NAF) instrumentality. NAF employees are not covered by 5 U.S.C. § 7512 but, instead, are covered under another personnel system, within the meaning of section 7121(f) of the Statute. See National Association of Government Employees, Local R5-169 and U.S. Department of the Army, Army and Air Force Exchange Service, Fort Polk, Louisiana, 36 FLRA 348 (1990). As such, the Authority does not have jurisdiction to review awards relating to matters similar to those matters covered under 5 U.S.C. § 7512 taken against NAF employees. See id.

The Arbitrator's denial of attorney fees relates to a matter, the downgrade of a NAF employee, which is similar to those matters covered under 5 U.S.C. § 7512. Consequently, the Authority has no jurisdiction to review the Union's exception to the Arbitrator's denial of attorney fees. See U.S. Department of Justice, Immigration and Naturalization Service, Baltimore, Maryland and National Immigration and Naturalization Service Council, American Federation of Government Employees, 34 FLRA 79 (1989).

V. Order

The Union's exception is dismissed.

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

*/
The Agency also filed a supplement to its opposition. As the Authority's Regulations do not provide for the filing of such supplemental submissions and the Agency has not established any circumstances warranting consideration of its submission, the supplement has not been considered.