American Federation of Government Employees, Local 1668 and United States Department of the Air Force, Elmendorf Air Force Base, Alaska (Authority decision, July 22, 1994)

Final FLRA decision. This order dismisses exceptions to an arbitration award involving an employee's removal and ends the matter before the Authority. The Authority says 5 U.S.C. §§ 7121(f) and 7122(a) place review of this type of award outside its jurisdiction; the decision identifies the Federal Circuit review route under 5 U.S.C. § 7703. It does not present the 60-day Authority-order review period under 5 U.S.C. § 7123(a) as applying to the underlying award.

Plain-English summary

AFGE Local 1668 asked the Authority to review an arbitration award that denied a grievance over an employee's removal from federal service. The Authority found that removal is a serious adverse action excluded from its arbitration exceptions jurisdiction. It also found that the union filed its exceptions one day after the deadline, which the Authority could not extend or waive. The Authority dismissed the exceptions without reaching the grievance's merits.

Decision snapshot

• Authority: Removal award review under 5 U.S.C. §§ 7121(f), 7122(a), 7512, and 7703; filing deadline under 5 C.F.R. § 2429.23(d).
• Outcome: Union exceptions dismissed for lack of jurisdiction and untimeliness.
• Key point: The Authority could not review an arbitration award involving removal from federal service.

Full text (FLRA public release)

[ v49 p1654 ]
49:1654(151)AR

The decision of the Authority follows:

49 FLRA No. 151

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1668

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

ELMENDORF AIR FORCE BASE, ALASKA

(Agency)

0-AR-2629

ORDER DISMISSING EXCEPTIONS

July 22, 1994

The Union has filed exceptions to the award of Arbitrator Ralph G. Wilmot in the above-captioned case. On June 24, 1994, the Authority directed the Union to show cause why its exceptions should not be dismissed because: (1) the Authority is without jurisdiction to review exceptions to an award relating to the removal of the grievant from a position in the Federal Service; and (2) the Union's exceptions were untimely filed. The Union filed a timely response to the Authority's Order. For the reasons set out below, the Union's exceptions must be dismissed.

Section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) provides, in pertinent part:

Either party to arbitration under [the Statute] 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 [the Statute]).

The matters described in section 7121(f) of the Statute include serious adverse actions covered under 5 U.S.C. § 7512, such as removals. See, for example, American Federation of Government Employees, Local 2094 and U.S. Department of Veterans Affairs, Manhattan Medical Center, 44 FLRA 1192 (1993). Review of arbitration awards relating to such matters, like review of decisions of the Merits Systems Protection Board, may be sought by appeal to the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703. The Authority is without jurisdiction to review such awards. See, for example, U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region Central, Memphis, Tennessee and American Federation of Government Employees, Local 2501, 47 FLRA 572 (1993).

In its response to the Authority's Order to Show Cause, the Union repeats the arguments presented in its exceptions. The Union, however, does not dispute that the Arbitrator's award, denying the Union's grievance, relates to the grievant's removal. As the Arbitrator's 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) of the Statute, exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Therefore, the Authority is without jurisdiction to review the Union's exceptions.

In addition, the Union's exceptions were untimely filed. Documentation provided by the Union clearly indicates that the Arbitrator's award was served on May 10, l994. In order to be considered timely the Union's exceptions had to be filed by June 13, l994. The Union's exceptions were filed on June 14, l994. The time limit may not be extended or waived by the Authority. 5 C.F.R.
§ 2429.23(d).

Accordingly, the Union's exceptions are dismissed.

For the Authority.

______
Alicia N. Columna
Director, Case
Control Office

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