National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, Ithaca, New York (Authority decision, May 29, 1998)

Final FLRA decision. The Authority dismisses the union's arbitration exceptions, ending this proceeding before the Authority without deciding the backpay claim. Under 5 U.S.C. §§ 7121(f) and 7122(a), the Authority cannot review an arbitration award concerning a covered removal under another personnel system. Section 7123(a)(1) limits judicial review of Authority orders involving arbitration awards.

Plain-English summary

An arbitrator reduced an Ithaca air traffic controller's removal for misconduct to a three day suspension, but reinstated the employee without backpay. The union excepted to the backpay ruling. The Authority held that the award concerned a removal similar to one covered by 5 U.S.C. § 7512 under the FAA's separate personnel system. Sections 7121(f) and 7122(a) therefore barred the Authority from reviewing the exceptions. It dismissed the case without deciding whether the employee was owed backpay.

Decision snapshot

• Authority: Arbitration jurisdiction under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Union's exceptions dismissed for lack of Authority jurisdiction.
• Key point: Mitigation of the removal did not bring the removal award within the Authority's exception jurisdiction.

Full text (FLRA public release)

[ v54 p240 ]
54:0240(33)AR

The decision of the Authority follows:

54 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

ITHACA, NEW YORK

(Agency)

0-AR-2971

_____

ORDER DISMISSING EXCEPTIONS

May 29, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Irwin J. Dean, Jr. 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator mitigated the grievant's removal to a 3-day suspension, but reinstated the grievant without backpay. We conclude that we lack jurisdiction over the exceptions. Accordingly, we dismiss the Union's exceptions.

II. Background and Arbitrator's Award

The grievant was employed as an air traffic control specialist. He was removed for misconduct and filed a grievance disputing his removal. The Arbitrator mitigated the removal to a 3-day suspension, but reinstated the grievant without backpay.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator's reinstatement of the grievant without backpay is contrary to the Back Pay Act, 5 U.S.C. § 5596, and the parties' collective bargaining agreement.

B. Agency's Opposition

The Agency contends that the award is not deficient. In addition, the Agency contends that the Authority has jurisdiction to resolve the Union's exceptions.

IV. Analysis and Conclusions

We conclude that we lack jurisdiction under section 7122(a) of the Statute to resolve the Union's exceptions to the Arbitrator's award. Section 7122(a) of the Statute pertinently provides:

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 matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems. Section 4303 covers removals and reductions-in-grade for unacceptable performance. Section 7512 covers removals, suspensions for more than 14 days, reductions in either grade or pay, and furloughs for 30 days or less.

We conclude that the award in this case relates to a matter similar to a matter covered under section 7512 and that the matter arose under another personnel system. We find that the grievant is employed in another personnel system. See U.S. Department of Transportation, Federal Aviation Administration and National Association of Air Traffic Specialists, 54 FLRA No. 32 (1998) (the new Federal Aviation Administration personnel management system constitutes another personnel system within the meaning of section 7121(f) of the Statute). We also find that as the award relates to the grievant's removal for misconduct, the award relates to a matter that is similar to a matter covered under section 7512. See id. Consequently, the award relates to a matter described in section 7121(f) of the Statute.

Under section 7122(a), exceptions to the award may not be filed with the Authority, and the Authority is without jurisdiction to resolve the exceptions. Accordingly, we dismiss the Union's exceptions for lack of jurisdiction.

V. Order

The Union's exceptions are dismissed.

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