National Weather Service Employees Organization and National Weather Service, Western Region (Authority decision, April 22, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. The Authority dismissed the agency's exceptions because the award relates to an employee removal, a matter excluded from its arbitration review jurisdiction. The decision identifies review under 5 U.S.C. § 7703 as the route for such matters.

Plain-English summary

An arbitrator set aside a National Weather Service employee's removal and ordered reinstatement with backpay. She later granted the union's request for attorney fees, and the Department of Commerce challenged that supplemental award before the Authority. The Authority held that it could not review exceptions to an arbitration award relating to removal, including the supplemental fee award. Such matters follow the review route applicable to Merit Systems Protection Board decisions. The Authority dismissed the agency's exceptions without deciding the fee dispute.

Decision snapshot

• Authority: Arbitration review exclusion for removal matters under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Agency exceptions dismissed for lack of jurisdiction.
• Key point: A supplemental attorney fee award relating to a removal is outside the Authority's arbitration exception jurisdiction.

Full text (FLRA public release)

[ v17 p622 ]

17:0622(91)AR

The decision of the Authority follows:

17 FLRA No. 91

NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION (MEBA, AFL-CIO)
Union

and

NATIONAL WEATHER SERVICE,
WESTERN REGION
Activity

Case No. 0-AR-941

ORDER DISMISSING EXCEPTIONS

This case is before the Authority on exceptions to a supplemental award of Arbitrator Janet L. Gaunt filed by the Department of Commerce (the Agency) on behalf of the Activity pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute and section 2425.1 of the Authority's Rules and Regulations. For the reasons stated below, the Authority is without jurisdiction to review the exceptions and the exceptions therefore must be dismissed.

In this case, the Arbitrator found that the grievant's removal by the Activity resulted from harmful procedural error and unlawful disparate treatment and was not made for reasons that promoted the efficiency of the service. As her award, the Arbitrator, among other things, set aside the removal action and directed the Activity to reinstate the grievant with backpay. The Arbitrator subsequently issued a supplemental award granting the Union's application for attorney's fees. The Agency then filed the instant exceptions to the supplemental award.

Section 7122(a) of the Statute provides, in pertinent 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). . . .

As relevant to this case, the matters described in section 7121(f) of the Statute include those covered under 5 U.S.C. 7512 which, in turn, applies to specified adverse actions including removals. Review of an arbitration award relating to such matters must be obtained in accordance with 5 U.S.C. 7703, i.e., in the same manner and under the same conditions as if the matter involved had been decided by the Merit Systems Protection Board.

Since the Arbitrator's award relates to a matter covered by 5 U.S.C. 7512, i.e., the removal of the grievant, under section 7122(a) of the Statute, exceptions to the award may not be filed with the Authority. Consequently, the Authority is without jurisdiction to review the exceptions.

Accordingly, and apart from other considerations, the Agency's exceptions are hereby dismissed. For the Authority. Issued, Washington, D.C. April 22, 1985 Harold D. Kessler Managing Director for Case Processing