34:0044(11)AR - - DOD, Defense Mapping Agency, Hydrographic/Topographic Center and AFGE Local 3407 - - 1989 FLRAdec AR - - v34 p44



[ v34 p44 ]
34:0044(11)AR
The decision of the Authority follows:


34 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY

HYDROGRAPHIC TOPOGRAPHIC CENTER

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3407

0-AR-1667

ORDER DISMISSING EXCEPTIONS

December 27, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The American Federation of Government Employees, Local 3407 (the Union) filed exceptions to a decision of a Defense Mapping Agency (the Agency) performance rating appeal panel. The panel denied the employee's appeal for higher performance ratings. The Agency filed an opposition to the Union's exceptions. Because the Authority lacks jurisdiction to review the Union's exceptions, the exceptions are dismissed.

II. Background

The function of the Performance Rating Appeal Panel (the Panel) is to hear and decide employees' appeals of performance ratings. The parties' negotiated grievance procedure states that performance ratings are only appealable to the Panel and that its decisions are final. Performance rating appeals may not be taken to arbitration.

The employee who appealed her rating is a physical scientist with the Agency. The employee appealed her performance rating to the Panel, seeking a higher rating. The Panel determined not to change the performance rating.

III. Position of the Parties

The Union filed exceptions to "the final Performance Rating Appeal . . ." of the employee. Union's Exceptions at 1. The Union's primary contention is that the employee should have been awarded a higher performance rating. Id. However, the Union concedes that performance rating disputes cannot be taken to arbitration. Id.

The Agency argues that the Authority lacks jurisdiction to make a decision on the Union's exceptions. Agency's Opposition. The Agency asserts that the Union is attempting to treat an in-house administrative decision as an arbitration award. Id. The Agency also argues that neither law (5 U.S.C. º 7122) nor regulation (5 C.F.R. part 2425) provides for review by the Authority of any decisions other than arbitration awards. Id. Finally, the Agency notes that the parties' negotiated grievance procedure specifically excludes arbitration of performance ratings appeals. Id.

IV. Analysis and Conclusion

We conclude that the Panel's decision on the employee's performance rating was not reached through binding arbitration under section 7121 of the Federal Service Labor-Management Relations Statute (the Statute). Therefore, the Authority lacks jurisdiction under section 7122 of the Statute to review that decision.

Section 7121(b)(3)(C) of the Statute requires negotiated grievance procedures to subject unsettled grievances to binding arbitration. Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 625 (1987). Section 7121(a)(2), however, permits the parties to exclude certain matters from their negotiated grievance procedure. Id. at 626. The Union acknowledges that the parties' negotiated grievance procedure excludes arbitration of performance rating appeals and that the Panel's decisions are final. Union's Exceptions at 1. Therefore, the Panel's action was not arbitration within the meaning of section 7121.

The Authority does not have jurisdiction under section 7122(a) to review exceptions to decisions which did not result from binding arbitration within the meaning of section 7121. See American Federation of Government Employees Council, San Francisco Region and Department of Health and Human Services, Social Security Administration, 9 FLRA 161 (1982) (arbitration pursuant to a negotiated advisory hearing procedure was not binding arbitration within the meaning of section 7121 of the Statute and exceptio