35:0824(87)AR - - Army, Army Reserve Personnel Center, St. Louis, MO and AFGE Local 900 - - 1990 FLRAdec AR - - v35 p824
[ v35 p824 ]
The decision of the Authority follows:
35 FLRA No. 87
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY RESERVE PERSONNEL CENTER
ST. LOUIS, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DISMISSING EXCEPTIONS
April 27, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Gerard A. Fowler. The Arbitrator denied the grievance over the grievant's removal.
The Union filed exceptions 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 Agency filed a Motion to Dismiss the exceptions.
For the reasons stated below, we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.
II. Background and Arbitrator's Award
The Agency removed the grievant from his position on the following grounds: (1) violation of the Agency's policy prohibiting sexual harassment, (2) absence without leave (AWOL) on August 2, 1988, (3) insubordination on September 21, 1988, for refusing to help his supervisor perform a task and leaving the work area, and (4) failure to follow instructions in a timely manner.
The grievant filed a grievance contesting his removal, and the grievance was submitted to arbitration. The Arbitrator determined that the Agency's charges against the grievant were valid and rejected the Union's request that the penalty be reduced. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that the Agency failed to prove that the grievant was unsuitable for employment. Additionally, the Union notes that the grievant was "harassed, followed and denied in connection with his medical treatment" for injuries sustained in military service. Exceptions at 1. The Union also asserts that the Arbitrator "failed to remain impartial and unbiased." Id. at 2.
B. Agency's Motion to Dismiss
The Agency asserts that the exceptions must be dismissed because the award involves a removal action under 5 U.S.C. § 7512.
We are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.
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) 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 Arbitrator's award relates to the grievant's removal, which is 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 exceptions and we will dismiss them. See,