28:0011(3)AR - AFGE, LOCAL 1858 VS ARMY, MICOM



[ 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 mat