39:0862(72)AR - - DOD Dependent Schools, Germany Region and Overseas Education Association - - 1991 FLRAdec AR - - v39 p862



[ v39 p862 ]
39:0862(72)AR
The decision of the Authority follows:


39 FLRA No. 72

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

GERMANY REGION

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Union)

0-AR-1997

ORDER DISMISSING AGENCY EXCEPTION

February 26, 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 Joseph M. Sharnoff 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 did not file an opposition to the Agency's exception.(*)

The Arbitrator determined that a grievance filed over the performance-based removal of a nonpreference-eligible, excepted service employee, was arbitrable. On the merits, the Arbitrator denied the grievance.

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 (NEES) employee, was removed from her teaching position for unacceptable performance. A grievance was filed and submitted to arbitration on the following issues:

I. Is the performance-based action of removal of an excepted appointed [sic], nonpreference[-] eligible employee arbitrable?

II. Did the Agency commit "harmful error" by denying the Grievant the opportunity to reply to the Final Decision of removal?

III. Was the performance-based removal of the Grievant taken in accordance with applicable law, rule and regulation and with Article 14 of the Parties' Agreement and, if not, what is the appropriate remedy?

Award at 2.

The Arbitrator determined first, based in part on the Authority's decision in Department of Defense Dependents Schools (DoDDS), Pacific Region and Overseas Education Association (OEA), 22 FLRA 597 (1986) (DoDDS), that the grievance was arbitrable. On the merits, the Arbitrator determined that the Agency did not commit harmful error and that the removal of the grievant was not improper. Accordingly, the Arbitrator denied the grievance.

III. The Agency's Exception

The Agency claims that, as an NEES employee, the grievant was precluded by law from challenging her removal through the parties' negotiated grievance procedure. According to the Agency, court decisions establish that, as a matter of law, NEES employees may not have access to negotiated grievance procedures to challenge performance-based removal 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.

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 was reeexamined by the Authority in U.S. Department of Defense Dependents Schools, Germany Region and Overseas Education Association, 38 FLRA No. 111 (1991) (DoDDS, Germany Region). After carefully examining the parties' positions, which are the same as the positions in the case now before us, as well as the court's decision in Nieuwdorp, the Authority stated that it would adhere to the Authority's decision in DoDDS. The Authority concluded that as the Agency personnel system was another personnel system, within the meaning of section 7121(f) of the Statute, the Authority lacked jurisdiction to review exceptions to an arbitration award relating to t