34:0090(21)AR - NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON and BREMERTON METAL TRADES COUNCIL -- 1989 FLRAdec AR
[ v34 p90 ]
The decision of the Authority follows:
34 FLRA NO. 21 U.S. DEPARTMENT OF THE NAVY PUGET SOUND NAVAL SHIPYARD BREMERTON, WASHINGTON and BREMERTON METAL TRADES COUNCIL 0-AR-1593 ORDER DISMISSING EXCEPTION December 29, 1989 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This case is before the Authority on an exception to the award of Arbitrator Robert A. O'Neill. The exception was filed by the United Brotherhood of Carpenters, Local Union No. 2317 on behalf of the Bremerton Metal Trades Council (the Union) and the grievant under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. For the reasons stated below, we find that the Authority is without jurisdiction to review the Union's exception and it must be dismissed. II. Background and Arbitrator's Award The grievant was removed from his position after he suffered an injury while working at the Puget Sound Naval Shipyard (the Agency) and filed a claim. The grounds for the removal were: (1) misstatement and concealment of facts in connection with an official record; (2) filing false testimony during an investigation; (3) filing false claims against the Government; (4) failure to observe precautions for personal safety; and (5) violations of safety regulations that endangered the grievant's life and resulted in personal injury. The grievant filed a grievance which was submitted to arbitration. The issues before the Arbitrator were (1) whether the Agency violated the parties' agreement and Chapter 752 of the Federal Personnel Manual (FPM) when it removed the grievant; and (2) if so, whether the grievant should be reinstated and made whole for lost pay and benefits. The Arbitrator determined that each of the five charges against the grievant was "substantially proven" and supported the removal action. Arbitrator's Award at 19. Therefore, the Arbitrator denied the grievance. III. Exception The Union alleges that the award is contrary to law and Government-wide regulation because "the Arbitrator fail(ed) to correctly apply the provisions of Federal Personnel Manual 752, Section 7122 and Public Law 454, the Civil Service Reform Act of 1978." Union's Exception at 1. The Union asserts that the FPM and the Statute require the Agency to prove the charges used to support a removal by a preponderance of the evidence. The Union contends that the Arbitrator did not apply the preponderance of evidence standard, as required by law. 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 under 5 U.S.C. 7512, such as removals and suspensions for more than 14 days. Review of an arbitration award reflecting to those matters must be obtained in accordance with 5 U.S.C. 7703, that is, in the same manner and under the same conditions as if the matter had been decided by the Merit Systems Protection Board. See Veterans Administration and American Federation of Government Employees, Local 2610, 33 FLRA 347 (1988). Since the Arbitrator's award relates to a matter covered by section 7512--the removal of the grievant--an exception to the award may not filed with the Authority under section 7122(a) of the Statute. Id. See also Mare Island Naval Shipyard and Federal Employees Metal Trades Council, 29 FLRA 1357 (1987). Therefore, the Authority is without jurisdiction to review the Union's exception. V. Order Accordingly, the Union's exception is dismissed.