39:0184(12)AR - - DOD Dependents Schools, Pacific Region and Overseas Education Association - - 1991 FLRAdec AR - - v39 p184
[ v39 p184 ]
The decision of the Authority follows:
39 FLRA NO. 12
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
OVERSEAS EDUCATION ASSOCIATION
ORDER DISMISSING AGENCY EXCEPTION
January 30, 1991
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 Thomas Angelo filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.
A grievance was filed over the discharge of the grievant, a nonpreference-eligible, excepted service employee, for unauthorized absence and failure to request leave in accordance with established procedures. The Arbitrator determined that the grievance was arbitrable and that the Agency did not have just cause to discharge the grievant.
For the following reasons, we conclude that the Authority is without jurisdiction to review the Agency's exception. Accordingly, we will dismiss the exception.
II. Background and Arbitrator's Award
The grievant, a nonpreference-eligible, excepted service employee, was discharged from her teaching position for unauthorized absence, failure to request leave in accordance with established procedures, and failure to notify her supervisor of her return to duty. A grievance was filed and was submitted to arbitration on the following stipulated issue:
Is the grievance arbitrable?
Was the Grievant . . . removed for just cause in accordance with the negotiated agreement and applicable law, rule and regulation? If not, what shall the remedy be?
Award at 3.
The Arbitrator determined first that, consistent with the Authority's decision in Department of Defense Dependents Schools (DoDDS), Pacific Region and Overseas Education Association (OEA), 22 FLRA 597 (1986) (DoDDS), the grievance was arbitrable. On the merits, the Arbitrator determined that the Agency did not have just cause to discharge the grievant. As his award, the Arbitrator required, among other things, that the grievant be reinstated to her former position, subject to a 5-day suspension, with full backpay and other benefits.
III. Positions of the Parties
A. The Agency's Exception
The Agency claims that, as the grievant is a nonpreference-eligible, excepted service (NEES) employee, she was precluded by law from challenging her discharge through the parties' negotiated grievance procedure. According to the Agency, recent court decisions establish that, as a matter of law, NEES employees may not have access to negotiated grievance procedures to challenge adverse actions. The Agency also claims, relying on Nieuwdorp v. Library of Congress, 872 F.2d 1000 (Fed. Cir. 1989) (Nieuwdorp), that contrary to the Authority's decision in DoDDS, Agency teachers are not included in "another personnel system," within the meaning of section 7121(f) of the Statute. Exceptions at 4. Accordingly, the Agency asserts that the Authority has jurisdiction to set aside the Arbitrator's award.
B. The Union's Opposition
The Union claims that the grievant's discharge arose under "an '[o]ther [p]ersonnel [s]ystem,'" within the meaning of section 7121(f) of the Statute. Opposition at 2 (emphasis deleted). Accordingly, the Union asserts that the Authority's decision in DoDDS was correct and that the Authority lacks jurisdiction to review the Agency's exception in this case. The Union maintains that Nieuwdorp does not provide a basis for reversing DoDDS.
IV. Analysis and Conclusions
Section 7122(a) of the Statute provides that the Authority does not have jurisdiction to review exceptions to arbitration awards relating to matters described in section 7121(f) of the Statute. Section 7121(f) includes matters covered under 5 U.S.C. ºº 4303 (actions based on unacceptable performance) and 7512 (adverse actions) and "matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems . . . ."
The issue of whether the Authority has jurisdiction to review exceptions to arbitration awards relating to removal actions involving Agency teachers recently was examined by the