31:1241(110)AR - Army, Army Missile Command, Redstone Arsenal, AL and AFGE Local 1858, Redstone Arsenal, AL -- 1988 FLRAdec AR
[ v31 p1241 ]
The decision of the Authority follows:
31 FLRA NO. 110 DEPARTMENT OF THE ARMY UNITED STATES ARMY MISSILE COMMAND REDSTONE ARSENAL, ALABAMA Activity and AFGE LOCAL 1858, AFL-CIO REDSTONE ARSENAL, ALABAMA Union Case No. 0-AR-1462 ORDER DISMISSING EXCEPTIONS I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator J. Thomas King. The Arbitrator denied the grievance and sustained the grievant's removal from the Federal service. Exceptions were filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Because the Arbitrator's award concerns the removal of the grievant from the Federal service, we are without jurisdiction to review the Union's exceptions. II. Background and Arbitrator's Award Following a 2-week period of absence without leave, the Agency directed the grievant to report for duty. The grievant failed to report, but he advised the Agency that he was absent due to a drug-related problem. At the grievant's request, the Agency granted him a leave of absence on the condition that he enroll in an alcohol and drug abuse program and make satisfactory progress toward rehabilitation. However, because the grievant remained absent without leave and failed to comply with the Agency's requirements for a leave of absence, the Agency removed the grievant from Federal service. The grievant filed a grievance concerning his termination, asserting that extenuating circumstances surrounded the reasons cited by the Agency for his removal. He alleged violations of the parties' collective bargaining agreement and the Federal Personnel Manual (FPM). The Arbitrator found that the grievant was absent without leave for more than 3 months. Further, the Arbitrator found that the grievant failed in his duty to keep management informed as to his ability to work, his need for leave, and any problems associated with his enrollment in an alcohol and drug abuse program. The Arbitrator also found that the Agency gave the grievant an opportunity for drug abuse treatment and counseling. Thus, the Arbitrator concluded that the Agency did not violate the parties' collective bargaining agreement. III. Exceptions The Union contends that the award is deficient under section 7122(a) of the Statute "because it is contrary to law and regulation (material facts)." Exceptions at 12. According to the Union, the Arbitrator did not base his decision on material facts, and, therefore, it must be set aside. The Agency did not file an opposition to the Union's exceptions. IV. Discussion 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 adverse actions, such as removals, under 5 U.S.C. 7512. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be sought by appeal to the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. 7703. Because the Arbitrator's award concerns a matter covered by 5 U.S.C. 7512, that is, the grievant's removal from the Federal service, exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. The Authority, therefore, is without jurisdiction to review the Union's exceptions. See, for example, U.S. Army Missile Command, Redstone Arsenal and American Federation of Government Employees, Local 1858, 31 FLRA 715 (1988). V. Order The Union's exceptions are dismissed. Issued, Washington, D.C., April 27, 1988.