35:1292(148)AR - - Air Force, Williams AFB, Chandler, AZ and AFGE Local 1776 - - 1990 FLRAdec AR - - v35 p1292
[ v35 p1292 ]
The decision of the Authority follows:
35 FLRA No. 148
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
WILLIAMS AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
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 Gerald D. Marcus. 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 Activity did not file an opposition to the exceptions.
For the reasons stated below, we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. Accordingly, we will dismiss them.
II. Background and Arbitrator's Award
The Activity removed the grievant for making threatening statements concerning his supervisor. A grievance contesting the removal was filed and submitted to arbitration.
The Arbitrator determined that the Activity had not committed harmful error in arriving at its decision to remove the grievant and that the removal of the grievant was justified for the efficiency of the service. Accordingly, the Arbitrator denied the grievance.
The Union contends that the Arbitrator erred in failing to find harmful error and misapplied his authority to overturn or mitigate the removal.
IV. Analysis and Conclusion
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, 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 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.
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 removal of the grievant 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. Because the award relates to a matter 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, for example, U.S. Department of the Army, Army Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900, 35 FLRA No. 87 (1990).