Department of Defense Dependents Schools, Pacific Region and Overseas Education Association (Authority decision, September 14, 1984)

Final FLRA decision. The Authority dismisses arbitration exceptions for lack of jurisdiction. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not resolve an unfair labor practice. The decision identifies a separate review route for the award under 5 U.S.C. § 7703.

Plain-English summary

A Defense Dependents Schools employee was removed for unacceptable performance. An arbitrator found procedural defects and reduced the removal to a suspension, but declined to reinstate the employee at another school. The union filed exceptions to that award with the Authority. The Authority held that awards involving performance removals under 5 U.S.C. § 4303 fall outside its arbitration exception jurisdiction and dismissed the exceptions without reviewing the award. It identified judicial review under 5 U.S.C. § 7703 as the applicable path.

Decision snapshot

• Authority: Performance removal under 5 U.S.C. § 4303; arbitration review limits under §§ 7121(f) and 7122(a).
• Outcome: Union exceptions dismissed for lack of jurisdiction.
• Key point: The performance removal award followed the separate adverse action review route, even though the arbitrator had reduced the penalty.

Full text (FLRA public release)

[ v16 p34 ]

16:0034(7)AR

The decision of the Authority follows:

16 FLRA No. 7

DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, PACIFIC REGION
Agency

and

OVERSEAS EDUCATION ASSOCIATION
Union

Case No. O-AR-814

ORDER DISMISSING EXCEPTIONS

This matter is before the Authority on exceptions to the award of Arbitrator Donald H. Wollett filed by the Union 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 Union's exceptions and they must be dismissed on that basis.

The dispute in this matter arose when the grievant was removed for unsatisfactory performance pursuant to 5 U.S.C. 4303. The Arbitrator found that the Activity violated the agreement by failing to comply with certain procedural requirements and reduced the removal to a suspension for one half the 1983-84 school year. However, he denied reinstatement of the grievant to a position in another school. The Union then filed the instant exceptions with the Authority.

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. 4303 which applies to adverse actions based on unacceptable performance. 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 in this case involves a matter directly related to a matter covered by 5 U.S.C. 4303, under section 7122(a) of the Statute the Authority is without jurisdiction to review the Union'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 Union's exceptions are hereby dismissed.

For the Authority.

Issued, Washington, D.C., September 14, 1984 Jan K. Bohren, Executive Director/Administrator