34:0319(61)AR - - Army, Army Reserve Personnel Center and AFGE Local 900 - - 1990 FLRAdec AR - - v34 p319



[ v34 p319 ]
34:0319(61)AR
The decision of the Authority follows:


34 FLRA NO. 61

U.S. DEPARTMENT OF THE ARMY
ARMY RESERVE PERSONNEL CENTER

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 900

0-AR-1652

DECISION

January 17, 1990

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 Solbert M. Wasserstrom. The Arbitrator denied the grievance over the termination of a temporary employee. American Federation of Government Employees Local 900 (the Union) filed an exception to the award 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 U.S. Army Reserve Personnel Center (the Activity) did not file an opposition to the exception.

For the reasons discussed below, we find that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

In November 1985, the grievant received a temporary appointment limited to 1 year or less to a position at the Activity. Her temporary appointment was periodically extended. On December 6, 1987, the grievant requested sick leave for the period from November 30 to December 30. If the sick leave could not be granted, the grievant requested leave without pay (LWOP). Her sick leave request was disapproved, but her request for LWOP was granted for a period not to exceed 30 days.


The grievant did not report to work between December 30, 1987, and February 1, 1988, and was listed as absent without leave (AWOL). During this period, the grievant requested additional LWOP. After she returned to work on February 1, her request for LWOP was disapproved. On February 9, 1988, she was notified of her termination, effective February 10, 1988.

The grievant filed a grievance protesting her termination.
The grievance was not resolved and was submitted to
arbitration.

The Activity argued that the grievance was not arbitrable because: (1) the grievant had not followed the steps of the grievance procedure; and (2) a grievance over the termination of a temporary employee is not covered by the negotiated grievance procedure. The Arbitrator rejected the Activity's claims and found that the grievance was grievable and arbitrable.
On the merits, the Arbitrator found that the grievant was AWOL from and after December 30, 1987, and that the grievant's termination was justified by her period of AWOL. Accordingly, the Arbitrator denied the grievance.

III. Exception

The Union contends that the grievant was "unjustly denied the right to grieve a disciplinary action of termination." Union's Exception at 1. The Union maintains that the grievant was a temporary employee with a reasonable expectation of continued employment. The Union also maintains that the grievant had been granted an amount of approved leave without pay that she never exhausted.

IV. Discussion

A. The Award Does Not Relate to a Matter Described in
Section 7121(f)

The issue of the Authority's jurisdiction in this case has not been raised by the parties. However, because the Authority does not have jurisdiction to review arbitration awards which involve removals of "employees," as defined in 5 U.S.C. 7511, we find it appropriate to discuss our jurisdiction in this case.

Under section 7122(a) of the Statute, exceptions may not be filed with the Authority to an arbitration award relating to a matter described in section 7121(f) of the Statute. The matters described in section 7121(f) include adverse actions under 5 U.S.C. 7512, such as removals, that have been taken against employees, as defined in 5 U.S.C. 7511.

The grievant was not an employee, within the meaning of 5 U.S.C. 7511, because she was a temporary employee whose appointment was limited to 1 year or less. Because the grievant was not an employee, within the meaning of 5 U.S.C. 7511, her termination was not an adverse action covered by 5 U.S.C. 7512. See Horner v. Lucas, 832 F.2d 596, 597 (Fed. Cir. 1987); Compton v. Department of the Navy, 31 MSPR 402 (1986). Therefore, the award does not relate to a matter described in section 7121(f) of the Statute, and the Union's exception to the award was properly filed with the Authority under section 7122(a) of the Statute.
B. The Union's Exception Provides No Basis For Finding The Award Deficient

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union fails to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

We reject the Union's contention that the grievant was unjustly denied the right to grieve her termination. The Arbitrator specifically ruled that the grievance was grievable and arbitrable, and he expressly considered the merits of the grievance. On the merits, the Arbitrator found that the grievant's termination was justified by her period of AWOL, and he denied the grievance.
The Union's contention that the grievant had been granted an amount of approved leave without pay that she never exhausted fails to establish that the award is deficient. The contention constitutes nothing more than disagreement with the Arbitrator's finding of fact that the grievant was absent without leave from and after December 30, 1987, and provides no basis for finding the award deficient under the Statute. For example, Department of the Army, Headquarters, United States Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 33 FLRA 53 (1988).
Accordingly, we will deny the exception.

V. Decision

The Union's exception is denied.