35:1272(146)AR - - Army, Military District of Washington and Federal Employees and Transportation Workers, Local 960 - - 1990 FLRAdec AR - - v35 p1272



[ v35 p1272 ]
35:1272(146)AR
The decision of the Authority follows:


35 FLRA No. 146

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

MILITARY DISTRICT OF WASHINGTON

(Agency)

and

FEDERAL EMPLOYEES AND TRANSPORTATION WORKERS

LOCAL 960

(Union)

0-AR-1843

ORDER DISMISSING EXCEPTIONS

May 31, 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 Richard I. Bloch. A grievance over the removal of an Agency civilian employee was submitted to arbitration. The Arbitrator determined that the grievance was untimely filed and, therefore, ruled that the grievance was not arbitrable.

The Union filed exceptions 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 an opposition to the Union's exceptions contending, among other things, that the Authority is without jurisdiction to review the exceptions. The Authority issued an Order requesting the Union to show cause why its exceptions should not be dismissed. The Union filed a response to the Authority's Order.

For the reasons stated below, we conclude that 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 a civilian employee from Federal service. The Union filed a grievance challenging the removal. The grievance was subsequently submitted to arbitration. Before ruling on the merits of the case, the Arbitrator first considered the issue of whether the grievance was timely filed. The Arbitrator determined that the grievance was untimely and found, in accordance with the parties' collective bargaining agreement, that the grievance was not arbitrable.

III. Positions of the Parties

A. Union's Exceptions

The Union takes issue with the Arbitrator's finding that "the grievance was untimely and therefore . . . was unarbitrable." Exceptions at 1. The Union contends that the Arbitrator's ruling that the grievance was untimely filed "rested on the sole testimony of one witness." Id. Further, the Union argues that the Arbitrator should not have allowed the Agency to raise the issue of timeliness because "[t]he issue of timeliness was never raised [until] two and a half years after the grievance was filed." Id., emphasis in original. Finally, the Union contends that because the Arbitrator did not rule on the merits of the case, he "did not get to hear pertinent facts in the case which may have impacted on the final decision he made." Id. at 2.

B. Agency's Opposition

The Agency contends that the Authority does not have jurisdiction under section 7122(a) of the Statute to review the exceptions because the award "involves a removal of a competitive service employee under section 7512 [of the Statute]." Id. The Agency argues that "where the issue [before the Arbitrator] is not separate and distinct from the original issue of the grievant's removal, the Arbitrator's award relates to a matter described in section 7121(f) of the Statute [and is excluded under section 7122(a)]." Id. at 3, quoting U.S. Army Armament Research, Development, and Engineering Center (ARDEC), Dover, New Jersey and National Federation of Federal Employees (NFFE), Local 1437, 24 FLRA 837, 839 (1986).

The Agency asserts that the allegations made by the Union's exceptions amount to "a disagreement with the [A]rbitrator's evaluation of the evidence and testimony [and] are no more than an attempt to relitigate the issue[.]" Id. at 3-4. Finally, the Agency asserts that the exceptions should be dismissed as procedurally deficient.

IV. Order to Show Cause and Union's Response

By an Order dated April 18, 1990, the Authority directed the Union to show cause "why its exceptions should not be dismissed because they concern a matter in which the Authority lacks jurisdiction." The Order stated that section 7122(a) of the Statute provides, in pertinent part:

Either party to arbitration under [the Statute] 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 [the Statute]).

Further, the Order stated that "[t]he matters described in section 7121(f) of the Statute include adverse actions, such as removals, under 5 U.S.C. § 7512. The Authority does not have jurisdiction to resolve exceptions to the Arbitrator's award to the extent that the award applies to competitive service employees within the meaning of 5 U.S.C. § 7511."

In its response to the Order to Show Cause, the Union notes that section 2425.3(b) of the Authority's Regulations provides that "[t]he [A]uthority will not consider an exception with respect to an award relating to a removal, suspension for more than fourteen (14) days, reduction in grade, reduction in pay, or furlough of [thirty] (30) days or less covered under [5 U.S.C. § 7512]." Response (emphasis in original). The Union asserts that the Arbitrator's award did not relate to a removal, but rather that "[t]he award related to the issue of timeliness of the filing of a grievance[.]" Id. Therefore, the Union contends that the Agency's assertion that the Authority does not have jurisdiction to resolve the exceptions is erroneous. Accordingly, the Union requests that the Authority issue a decision and order on its exceptions.

V. Analysis and Conclusion

We are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.

As stated above, review of awards relating to matters described in section 7121(f) of the Statute is excluded under section 7122(a). The matters described in section 7121(f) include adverse actions covered under 5 U.S.C. chapter 75, subchapter II. To be an adverse action covered under chapter 75, subchapter II, the action must be covered under 5 U.S.C. § 7512 and must have been taken against an employee as defined in 5 U.S.C. § 7511. 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. Additionally, review of determinations of procedural arbitrability by arbitrators in grievances relating to adverse actions under 5 U.S.C. § 7512 may also be sought by appeal to the Federal Circuit. See Huey v. Department of Health and Human Services, 782 F.2d 1575 (Fed. Cir. 1986).

We find that the award relates to an adverse action covered under 5 U.S.C. chapter 75, subchapter II, and, therefore, relates to a matter described in section 7121(f) of the Statute. The grievant's removal is an action covered under 5 U.S.C. § 7512. Additionally, the record in this case indicates that the grievant was a nonprobationary, competitive service employee, and, therefore, was an employee within the meaning of 5 U.S.C. § 7511.

Further, we find that the Union's Response to our Order to Show Cause does not provide a basis for considering its exceptions. We disagree with the Union's contention that the Arbitrator's award did not relate to the removal of the grievant. The Arbitrator's awa