40:0515(49)AR - - Navy Resale Activity, Guam and AFGE Local 1689 - - 1991 FLRAdec AR - - v40 p515
[ v40 p515 ]
The decision of the Authority follows:
40 FLRA No. 49
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Agency's motion for reconsideration of our order dismissing exceptions in 40 FLRA 30 (1991). The Union did not file an opposition to the Agency's motion.
Our order in 40 FLRA 30 dismissed the Agency's exceptions to an award of Arbitrator Thomas Q. Gilson. The award related to the removal of a nonappropriated fund employee. We held that we were without jurisdiction under section 7121(f) of the Statute to review the Agency's exceptions because the award related to the grievant's removal. For the reasons that follow, we will deny the Agency's motion for reconsideration. However, we will clarify our order to reflect that the Agency's exceptions are dismissed on the ground that the Arbitrator's award concerning the grievant's removal relates to a matter described in section 7121(f) which arose under another personnel system and we are without jurisdiction to review the Agency's exceptions.
II. The Order in 40 FLRA 30
In 40 FLRA 30 we concluded that the Agency's exceptions must be dismissed because the Arbitrator's award concerned the removal of a nonappropriated fund employee. In his award, the Arbitrator dismissed the grievance over the grievant's removal, rescinded the Agency's action barring the grievant from the U.S. Naval Station, Guam, and ordered the Agency to pay the grievant $500 in lieu of damages for lost wages from a job at a civilian fast food restaurant located on the Naval Station. The Agency filed exceptions to the portion of the Arbitrator's award rescinding the order that the grievant be barred from the Naval Station and awarding $500 in lieu of damages for loss of the job at the restaurant. The Agency maintained that that portion of the Arbitrator's award exceeded the Arbitrator's authority and was contrary to law. We held that because the Arbitrator's award related to the removal of the grievant and concerned a matter under section 7121(f) of the Statute, the Authority was without jurisdiction under section 7122(a) to review the Agency's exceptions.
III. Agency's Motion for Reconsideration
The Agency contends that extraordinary circumstances exist to warrant reconsideration of the order in 40 FLRA 30. The Agency asserts that it did not seek "review of any aspects of the removal action," and acknowledges that the Authority does not have jurisdiction to review the Arbitrator's decision concerning the removal of the grievant from his position. Agency Brief at 2. In this regard, the Agency states that because the grievant was a nonappropriated fund employee who was not covered by 5 U.S.C. § 7512, he had no right to judicial review under 5 U.S.C. § 7703, which provides for judicial review of decisions of the Merit Systems Protection Board.
However, the Agency contends that the Authority erred by failing to address issues which were unrelated to the grievant's removal. The Agency maintains that the Arbitrator exceeded his authority by ordering the rescission of the order barring the grievant from the U.S. Naval Station, Guam, because at the time the order was issued the grievant was no longer an employee of the Agency. The Agency also claims that the Authority erred by noting that the Arbitrator found that the Agency violated its own rules and regulations when it barred the grievant from the Naval Station. The Agency states that the Arbitrator found only that the Agency committed a technical violation of its regulations dealing with employee interviews.
The Agency also contends that the Authority failed to address the Agency's exceptions to the Arbitrator's award of $500 in lieu of damages to the grievant for loss of wages at a fast food restaurant on the Naval Base. The Agency claims that that issue is not related to the grievant's removal because the grievant was not an employee at the time he was barred from the Base. The Agency states that there is no "express statutory authorization which would permit payment of the 'penalty' assessed by the [A]rbitrator." Id. at 4.
IV. Analysis and Conclusions
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our order in 40 FLRA 30. In this regard, we find that the Agency's arguments concerning our failure to address its exceptions relating to the order barring the grievant from the Naval Base and to the award of $500 in lieu of damages constitute nothing more than disagreement with and an attempt to relitigate our finding in 40 FLRA 30 that the Arbitrator's award related to the grievant's removal. Consequently, the Agency fails to demonstrate the extraordinary circumstances necessary for reconsideration of our order. See U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 39 FLRA 1238 (1991).
However, we take this opportunity to clarify that the Authority lacks jurisdiction over the Agency's exceptions because the Arbitrator's award concerns the removal of a nonappropriated fund employee. Although nonappropriated fund employees are not covered by 5 U.S.C. § 7512, the Authority has held that section 7121(f) includes actions similar to those covered by section 7512 which arise under other personnel systems. See Army and Air Force Exchange Service and American Federation of Government Employees, Region Council 236, 33 FLRA 815, 817-18 (1988). Further, the Authority has held that nonappropriated fund employees are under another personnel system within the meaning of section 7121(f). Id. Therefore, because the grievance in this case concerns the removal of a nonappropriated fund employee, which is an action similar to one covered by section 7512 arising under another personnel system, the award relates to a matter described in section 7121(f) of the Statute and we are without jurisdiction to review the Agency's exceptions to the award.
Accordingly, we will deny the Agency's motion for reconsideration. However, we will clarify our order consistent with the discussion set forth above.
The Agency's motion for reconsideration is denied. The third paragraph on page 3 of the order dismissing exceptions in 40 FLRA 30 is modified to read as follows:
The Arbitrator's award in this case relates to the removal of the grievant, a nonappropriated fund employee. Nonappropriated fund employees are under another personnel system with