31:1241(110)AR - Army, Army Missile Command, Redstone Arsenal, AL and AFGE Local 1858, Redstone Arsenal, AL -- 1988 FLRAdec AR



[ v31 p1241 ]
31:1241(110)AR
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.