34:0093(22)AR - AFGE, LOCAL 2904 and U.S. DEPARTMENT OF THE NAVY U.S. MARINE CORPS FINANCIAL CENTER KANSAS CITY, MISSOURI -- 1989 FLRAdec AR
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The decision of the Authority follows:
34 FLRA NO. 22 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2904 and U.S. DEPARTMENT OF THE NAVY U.S. MARINE CORPS FINANCIAL CENTER KANSAS CITY, MISSOURI 0-AR-1784 ORDER DISMISSING EXCEPTION December 29, 1989 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on an exception to the award of Arbitrator J.C. Fogelberg. The Arbitrator dismissed the grievance over the grievant's removal. The Arbitrator determined that the grievant had waived her grievance rights when she executed a "last chance" agreement. AFGE Local 2904 filed an exception 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 Marine Corps Financial Center, Kansas City, Missouri (the Activity) did not file an opposition to the exception. For the reasons stated below, we are without jurisdiction under section 7122(a) of the Statute to review the Union's exception. II. Background and the Arbitrator's Award On April 28, 1988, the grievant and the Activity executed an agreement. Under the agreement, the grievant agreed to seek professional assistance for her problems with alcohol, and the Activity agreed to delay the decision on the proposed removal of the grievant and afford the grievant an opportunity to resolve her problems. The grievant also agreed to the reinstatement of the removal action is she violated the agreement and to the waiver of her right to grieve the removal action if it was reinstated. On December 2, 1988, the grievant received a "Notice of Removal" which reinstated the removal action because she had violated the provisions of the April 28 agreement. A grievance was filed over the grievant's removal and submitted to arbitration on the threshold issue of the validity of the April 28 agreement. The Arbitrator determined that the agreement was valid. Accordingly, the Arbitrator dismissed the grievance. III. Exception The Union contends that the award is contrary to the Statute. The Union argues that the Arbitrator erred by enforcing an agreement which was entered into without the written consent of the Union. IV. Discussion We are without jurisdiction under section 7122(a) of the Statute to review the Union's exception. Section 7122(a) of the Statute provides, in pertinent part, as follows: 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) include serious adverse actions covered under 5 U.S.C. 7512, such as removals. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. 7703. Because the award relates to the removal of the grievant, a matter which is covered under 5 U.S.C. 7512 and described in section 7121(f), exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Consequently, we are without jurisdiction to review the Union's exception and it is hereby dismissed. V. Order The Union's exception is dismissed.