U.S. Department of the Air Force, Air Force Development Test Center, Eglin Air Force Base, Florida and American Federation of Government Employees, Local 1897 (Authority decision, April 8, 1992)

Final FLRA decision. The Authority dismisses exceptions to an arbitration award for lack of jurisdiction under 5 U.S.C. §§ 7121(f) and 7122(a). Orders involving arbitral awards are generally excluded from judicial review under 5 U.S.C. § 7123(a)(1) unless they involve an unfair labor practice. The decision identifies review of qualifying performance-removal awards in the Federal Circuit under 5 U.S.C. § 7703; it does not decide that appeal.

Plain-English summary

An Eglin Air Force Base employee was removed for unacceptable performance, and an arbitrator upheld the removal. AFGE Local 1897 filed exceptions with the Authority, arguing that the arbitrator had missed evidence and that the agency had failed to notify the union about a change in working conditions. The Authority did not address those arguments. It held that federal law excludes arbitration awards involving performance-based removals from its exceptions jurisdiction and dismissed the filing. The arbitrator's removal ruling was left undisturbed.

Decision snapshot

• Authority: Performance removal under 5 U.S.C. § 4303; review limits under §§ 7121(f) and 7122(a).
• Outcome: Union exceptions dismissed for lack of Authority jurisdiction.
• Key point: A challenge to an arbitration award on a performance-based removal follows the statutory court review route, outside the Authority's exceptions process.

Full text (FLRA public release)

[ v44 p763 ]
44:0763(63)AR

The decision of the Authority follows:

44 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE DEVELOPMENT TEST CENTER

EGLIN AIR FORCE BASE, FLORIDA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1897

(Union)

0-AR-2230

ORDER DISMISSING EXCEPTIONS

April 8, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Roger C. Williams 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 did not file an opposition to the Union's exceptions.

The Arbitrator upheld the removal of the grievant for unacceptable performance under 5 U.S.C. § 4303 and denied the grievance.

We conclude that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. Accordingly, we will dismiss the exceptions.

II. Background and Arbitrator's Award

The grievant was removed from his position as a public affairs specialist, GS-1035-09, for unacceptable performance under 5 U.S.C. § 4303.(*) He filed a grievance contesting the removal. The grievance was not resolved and was submitted to arbitration. The Arbitrator upheld the removal and denied the grievance.

III. Exceptions

The Union contends that the Arbitrator failed to review the entire case file and failed to realize that the Agency was obligated to notify the Union before changing the grievant's conditions of employment. The Union also asserts that the Arbitrator failed to "acknowledge" or "pursue" certain evidence. Exceptions at 2-3.

IV. Analysis and Conclusions

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

Section 7122(a) 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 performance-based actions covered under 5 U.S.C. § 4303, such as a removal for unacceptable performance. For nonprobationary, competitive service employees, 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.

The Arbitrator's award relates to the grievant's removal for unacceptable performance, which is a matter covered by 5 U.S.C. § 4303 and described in section 7121(f). Accordingly, we are without jurisdiction to review the Union's exceptions, and we will dismiss them.

See U.S. Army Missile Command and American Federation of Government Employees, AFL-CIO, Local 1858, 28 FLRA 11, 12 (1987).

V. Order

The Union's exceptions are dismissed.

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

*/ The record indicates that the grievant was a nonprobationary competitive service employee. In this regard, we note that attached to the decision notifying the grievant of his removal were appeal forms and the regulations of the Merit Systems Protection Board.