33:0815(91)AR - - Army and Air Force Exchange Service and AFGE, Region Council 236 - - 1988 FLRAdec AR - - v33 p815
[ v33 p815 ]
The decision of the Authority follows:
33 FLRA No. 91
FEDERAL LABOR RELATIONS AUTHORITY
ARMY AND AIR FORCE EXCHANGE SERVICE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, REGION COUNCIL 236
ORDER DISMISSING EXCEPTION
October 31, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Wallace B. Nelson. The Arbitrator found no just cause for the 14-day suspension of the grievant and ordered that the grievant be made whole for the time of the suspension. The grievant was also downgraded by the Agency, and the Arbitrator found that there was just cause for the downgrade and dismissed that portion of the grievance.
Exceptions were filed by the American Federation of Government Employees, Region Council 236 (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. The Army and Air Force Exchange Service (the Agency) filed a document entitled Motion to Dismiss, which we have considered as an opposition.
For the reasons which follow, we conclude that the Authority is without jurisdiction to review the Union's exceptions under section 7122(a).
II. Background and Arbitrator's Award
The grievant, a motor vehicle driver for a nonappropriated fund (NAF) instrumentality, was involved in several accidents while operating motor vehicles within the facility. A Driver Review Committee (the Committee) found that he had a total of 18 accidents and 12 citations. The Committee also found that his last accident could have been prevented by reducing speed to compensate for weather and road conditions, that the grievant was an extremely nervous person, and that his performance was below standards because of his accident proneness. Award at 2-3. The Committee recommended that he receive appropriate disciplinary action for continued careless operation of a motor vehicle. Id.
As a result of this report from the Committee, the grievant was downgraded and placed in a warehouse position which required no driving. The grievant also received a 14-day suspension without pay for his failure to exercise proper care when operating a motor vehicle. Id. The employee filed a grievance which ultimately went to arbitration.
The Arbitrator found no just cause for the 14-day suspension and ordered that the grievant be made whole for the time of the suspension. However, the Arbitrator found just cause for the grievant's downgrade. Award at 9. Therefore, he denied the grievance with respect to the downgrade.
III. Positions of the Parties
The Union argues that the Arbitrator failed to apply appropriate Federal court precedent. Specifically, the Union argues that Lisiecki v. MSPB, 769 F.2d 1558 (Fed. Cir. 1985) is applicable.
In its Motion to Dismiss, the Agency argues that the Authority lacks jurisdiction to review the award. The Agency notes that it is a nonappropriated fund instrumentality and that the matter falls within the provisions of 5 U.S.C. § 7121(f). Thus, the Agency argues that an appeal of the award must be made to a Court of Appeals.
IV. Analysis and Conclusions
We find that the Authority is without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.
Our analysis begins with section 7122(a). That section 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).
Section 7121(f) includes actions taken under section 7512 and actions similar to those covered by section 7512 which arise under other personnel systems. We find that a downgrade is similar to a reduction in grade, which is an action covered by section 7512. NAF employees, however, are not covered by section 7512. NAF employees are under another personnel system pursuant to 5 U.S.C. § 2105(c). Therefore, because the award concerns a matter similar to those covered by section 7512 which arose under another personnel system, the Authority is without jurisdiction to review this arbitration award under section 7121(f).(*)
Under 5 U.S.C. § 2105(c), "[a]n employee paid from nonappropriated funds of the Army and Air Force Exchange Service . . . is deemed not an employee" for the purpose of laws, with exceptions not relevant to this case, which are administered by the Office of Personnel Management. NAF employees are not covered by laws, with the exceptions noted in 5 U.S.C. § 2105(c), which are applicable to employees within the general Federal Civil Service.
The Authority has noted that NAF employees are covered under another personnel system for performance-based adverse actions. American Federation of Government Employees, Local 1799 and Department of the Army, Aberdeen Proving Ground, Maryland, 22 FLRA 574, 576 (1986). This conclusion is consistent with the decision of the Federal Circuit Court of Appeals in Perez v. Army and Air Force Exchange Service, 680 F.2d 779 (D.C. Cir. 1982). The court noted the existence of another personnel system for NAF employees: "Congress's practice has been to define the rights of [NAF employees] by expressly including them within the coverage of specific laws." Id. at 787.
Therefore, NAF employees are under another personnel system within the meaning of section 7121(f). See American Federation of Government Employees, Local 1533, AFL-CIO and Navy Resale and Services Office, Department of the Navy, Oakland, California, 17 FLRA 1082 (1985). Since the Arbitrator's award concerning the grievant's downgrade relates to a matter described in section 7121(f) which arose under another personnel system, the Authority is without jurisdiction to review the Union's exceptions. See also Department of Defense Dependents Schools (DoDDS), Pacific Region and Overseas Education Association (OEA), 22 FLRA 597 (1986) (finding unreviewable arbitration award relating to removal of teacher who was under another personnel system within the meaning of section 7121(f)).
The Union's exception is dismissed.
(If blank, the decision does not have footnotes.)
*/ The second sentence of section 7121(f) states:
In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures.