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









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 redu