Internal Revenue Service, Newark District Office and National Treasury Employees Union, Chapter 60 (Authority decision, July 5, 1984)

Final FLRA decision. The Authority dismissed exceptions to an arbitration award for lack of jurisdiction under 5 U.S.C. § 7122(a). The award concerned a removal covered by 5 U.S.C. § 7121(f), for which the decision identifies judicial review under 5 U.S.C. § 7703 as the review route.

Plain-English summary

An arbitrator changed an IRS employee's removal to a 30-day suspension and later awarded the union attorney fees. The IRS challenged the fee award at the Authority. The Authority found that the underlying arbitration involved a removal, one of the adverse actions excluded from its arbitration exception jurisdiction by 5 U.S.C. § 7122(a). It dismissed the agency's exceptions without reviewing the fee award. The decision states that judicial review of the arbitration award could be sought under 5 U.S.C. § 7703.

Decision snapshot

• Authority: Adverse action arbitration review limits under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Agency exceptions dismissed for lack of Authority jurisdiction.
• Key point: The fee award related to a removal case whose arbitration review path was outside the Authority's exception process.

Full text (FLRA public release)

[ v15 p245 ]

15:0245(46)AR

The decision of the Authority follows:

15 FLRA No. 46

INTERNAL REVENUE SERVICE,
NEWARK DISTRICT OFFICE
Activity

and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 60
Union

Case No. O-AR-766

ORDER DISMISSING EXCEPTIONS

This matter is before the Authority on exceptions to the award of Arbitrator William J. Fallon filed by the Activity under 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 set forth below, the Authority is without jurisdiction to review the Activity's exceptions and they must be dismissed on that basis.

In this case, the Arbitrator found that the Activity's removal of the grievant was not for such cause as would promote the efficiency of the service and reduced the penalty to a 30-day suspension. The Arbitrator subsequently granted the Union's application for attorney fees. The Activity then filed the instant exceptions to the award of attorney's fees.

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).

The matters described in section 7121(f) of the Statute include those covered under 5 U.S.C. 7512 which applies to specified adverse actions, including removals and suspensions for more than 14 days. Pursuant to section 7121(f), 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 judicial review of a final decision of the Merit Systems Protection Board.

Since the Arbitrator's award relates to a matter covered by 5 U.S.C. 7512, the removal of the grievant, under section 7122(a) of the Statute the Authority is without jurisdiction to review the Activity's exceptions. Rather, judicial review of the Arbitrator's award may be sought pursuant to 5 U.S.C. 7703.

Accordingly, and apart from other considerations, the Activity's exceptions are hereby dismissed.

For the Authority.

Issued, Washington, D.C., July 5, 1984
Harold D. Kessler, Director, Case
Management