U.S. Army Missile Command and AFGE Local 1858 (Authority decision, July 16, 1987)

Final FLRA decision. The Authority dismisses both parties' exceptions to an arbitration award because the award relates to an unacceptable-performance removal, which lies outside its arbitration-review jurisdiction under 5 U.S.C. §§ 7121(f) and 7122(a). Review of that kind of award follows the route applicable to a Merit Systems Protection Board decision. Under 5 U.S.C. § 7123(a)(1), Authority orders involving arbitral awards are generally excluded from the ordinary judicial-review provision unless they involve an unfair labor practice; this decision states no such issue.

Plain-English summary

An Army Missile Command employee challenged an unsatisfactory performance rating and was later removed for unacceptable performance. An arbitrator changed the rating to fully successful, ordered reinstatement with backpay, and denied attorney fees. The agency challenged the rating and reinstatement, while the union challenged the fee denial. The Authority held that every challenged part of the award related to the employee's removal. Because the labor statute sends review of that kind of removal through the route used for Merit Systems Protection Board matters, it dismissed both parties' exceptions without reaching their merits.

Decision snapshot

• Authority: Removal-related award review under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Agency and union exceptions dismissed for lack of Authority jurisdiction.
• Key point: An award tied to an unacceptable-performance removal must use the separate statutory review route.

Full text (FLRA public release)

[ v28 p11 ]
28:0011(3)AR

The decision of the Authority follows:

28 FLRA NO. 3

U.S. ARMY MISSILE COMMAND

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1858

Union

Case No. O-AR-1287

ORDER DISMISSING EXCEPTIONS

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Michael Jay Jedel filed by both the Union and Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant received an unsatisfactory performance rating and filed a grievance disputing the appraisal. After the grievance was filed, the grievant was removed for unacceptable performance. The grievance over his performance rating was not resolved and was submitted to arbitration. Apparently, the grievant also filed a grievance over his removal that was stayed pending the outcome of his grievance over his performance appraisal.

The Arbitrator sustained the grievance and directed that the unsatisfactory performance appraisal be replaced with an appraisal of fully successful. The Arbitrator also ordered that the grievant be reinstated to the position from which he was removed or a comparable position with backpay and benefits retroactive to the date of his removal. However, the Arbitrator denied the request for attorney fees.

The Agency has filed exceptions to the Arbitrator's award sustaining the grievance, directing the grievant's performance rating be changed, and ordering the grievant reinstated with backpay. The Union has filed an exception to the Arbitrator's denial of attorney fees while at the same time asserting that the Authority has no jurisdiction to resolve exceptions to the award because the award relates to the removal of the grievant for unacceptable performance under 5 U.S.C. 4303.

III. Analysis and Conclusion

We conclude that we are without jurisdiction to review the parties' exceptions. 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).

As relevant to this case, the matters described in section 7121(f) of the Statute include removals for unacceptable performance under 5 U.S.C.4303. Review of an arbitration award relating to such matters must be obtained in the same manner and under the same conditions as if the matter involved had been decided by the Merit Systems Protection Board. National Treasury Employees Union Chapter 49 and Internal Revenue Service, Indianapolis District, 23 FLRA No. 61 (1986).

In this case the award pertains to the grievant's performance appraisal which was the basis for the grievant's removal for unacceptable performance, directs the grievant's reinstatement, and denies the request for attorney fees. Since the award in these respects relates to the removal for unacceptable performance, we find that both the Agency's and the Union's exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute.

IV. Decision and Order

For these reasons, and apart from any other considerations, we conclude that we are without jurisdiction to review the exceptions filed by the Agency and the Union and they are dismissed. 1

Issued, Washington, D.C., July 16, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 The Agency also requested a stay of
the award when it filed its exceptions to the award with the Authority on December 31, 1986. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.