54:0235(32)AR - - DOT, FAA & National Association of Air Traffic Specialist // [ Department of Transportation; Federal Aviation Administration ] - - 1998 FLRAdec AR - - v54 p235



[ v54 p235 ]
54:0235(32)AR
The decision of the Authority follows:


54 FLRA No. 32

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

and

NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS

(Union)

0-AR-2973

_____

ORDER DISMISSING EXCEPTIONS

May 29, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Emily Maloney filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained the grievance over the grievant's removal and ordered him reinstated. We conclude that we lack jurisdiction over the exceptions under section 7122(a) of the Statute. Accordingly, we dismiss the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant was employed as an air traffic control specialist. He was removed on May 19, 1996, and filed a grievance disputing the removal. The Arbitrator sustained the grievance and ordered the grievant reinstated.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is deficient on several grounds: (1) the Arbitrator lacked jurisdiction under section 7121(d) of the Statute; (2) the award is contrary to section 7106(a) of the Statute; (3) the award is contrary to the Back Pay Act; and (4) the Arbitrator exceeded her authority.

In addition, the Agency contends that the Authority has jurisdiction to resolve its exceptions. The Agency claims that although the award relates to the grievant's removal, section 7122(a) of the Statute does not divest the Authority of its jurisdiction to resolve the exceptions because no other review is available in this case. The Agency asserts that the Authority should follow American Federation of Government Employees, Local 2986 and U.S. Department of Defense, National Guard Bureau, The Adjutant General, State of Oregon, 51 FLRA 1549 (1996) (AG, State of Oregon), and refuse to decline jurisdiction.

The Agency notes that as a result of the mandate of the Department of Transportation and Related Agencies Appropriations Act of 1996, Pub. L. No. 104-50, 109 Stat. 460 (the Appropriations Act), on March 28, 1996, it established the Federal Aviation Administration Personnel Management System. The system includes an FAA appeals procedure for employees subjected to removal, suspension for more than 14 days, a reduction in either grade or pay, or a furlough for 30 days or less. The Agency explains that the procedure was necessary because the Appropriations Act denied FAA employees appeal rights to the Merit Systems Protection Board (MSPB). However, the appeals procedure excludes from its coverage any employee covered by a collective bargaining agreement.

The Agency claims that because unit employees are precluded from using the appeals procedure, the election of remedies contemplated by section 7121(e) of the Statute is meaningless. As there is no possibility of multiplicity of litigation under the FAA personnel management system, the Agency maintains that the basis for depriving the Authority of jurisdiction over awards relating to matters described in section 7121(f) does not apply in this case. The Agency asserts that under the unique circumstances of the FAA personnel system, the Authority should view the matters of the Arbitrator's jurisdiction, the Back Pay Act, and management rights as separate from the grievant's removal and resolve the exceptions as to these matters.

B. Union's Opposition

The Union contends that because the award relates to the grievant's removal, the Authority lacks jurisdiction to resolve the Agency's exceptions.

IV. Analysis and Conclusions

A. Authority's Jurisdiction

Section 7122(a) of the Statute pertinently provides:

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) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems. Section 4303 covers removals and reductions-in-grade for unacceptable performance. Section 7512 covers removals, suspensions for more than 14 days, reductions in either grade or pay, and furloughs for 30 days or less. Section 7121(e) of the Statute gives an option to certain employees who decide to challenge a matter covered under section 4303 or 7512 or similar matters that arise under another personnel system. These employees can either: (1) file a grievance over the matter under a negotiated grievance procedure (if the matter is not excluded); or (2) appeal the matter to the Merit Systems Protection Board (MSPB) (if the employee is within the MSPB's jurisdiction), or raise the matter under whatever appellate procedures, if any, are applicable (if the employee is within another personnel system).

Section 7121(f) addresses the review of arbitration awards resolving grievances encompassed by section 7121(e). For employees in other personnel systems, section 7121(f), provides that, if the employee has filed a grievance over a matter similar to one covered under section 4303 or 7512, the resulting award has the same review as if the administrative appeal option, if one exists, were chosen. Under section 7122(a), the Authority is without jurisdiction to review these awards. See, e.g., U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, Local 3854, 51 FLRA 1651, 1653 (1996) (AAFES).

With respect to other personnel systems, section 7121(e) refers to the right of employees to appeal "[s]imilar matters" without regard to whether the employee actually has an administrative appeal alternative. Therefore, the Authority does not look beyond the specific personnel actions listed in sections 4303 and 7512 when determining whether a grievance implicates "similar" matters within the meaning of section 7121(e) and (f). See id. at 1654.

Section 7121(f) does not define the phrase "[an]other personnel system." The Authority has concluded that the determinative factor in deciding whether a personnel system constitutes another personnel system within the meaning of section 7121(f) is whether the system is intended to operate separate and apart from the personnel system that is applicable to general civil service employees. See U.S. Department of Defense Dependents Schools, Germany Region and Overseas Education Association, 38 FLRA 1432, 1436 (1991) (DODDS).

B. The Authority Lacks Jurisdiction To Resolve Exceptions

Under section 347(b) of the Appropriations Act and Pub. L. No. 104-122, 110 Stat. 876, the FAA personnel management system is exempt from all of title 5 of the U.S. Code, except for the following: (1) section 2302(b); (2) sections 3308-3320; (3) chapter 71; (4) section 7204; (5) chapter 73; (6) chapter 81; and (7) chapters 83-85, 87, and 89. Under section 225 of the Air Management System Performance Improvement Act of 1996, Pub. L. No. 104-264, 110 Stat. 3213 (Performance Improvement Act), the Administrator of the FAA is authorized to appoint, transfer, and fix the compensation of employees. As a result, the FAA personnel management system is exempted from substantially all of title 5. "The [Appropriations] Act clearly manifests Congress's intent to grant to the FAA the power to promulgate its own personnel system to address 'the unique demands on the agency's workforce.'" Allen v. MSPB, 127 F.3d 1074, 1076 (Fed. Cir. 1997) (quoting section 347(a) of the Appropriations Act). Accordingly, we conclude that the personnel management system established by the Agency is intended to operate separate and apart from the personnel system that is applicable to the general civil service. Consequently, it constitutes another personnel system within the meaning of section 7121(f) of the Statute. See DODDS, 38 FLRA at 1436.

We also conclude that the award relates to the removal of the grievant, which is a matter that is similar to a matter covered under section 4303 or 7512. Consequently, the award relates to a matter described in section 7121(f). Under section 7122(a), exceptions to the award may not be filed with the Authority, and the Authority is without jurisdiction to review the exceptions.

The Agency's arguments to the contrary are unavailing. First, as explained in AAFES, 51 FLRA at 1654, the Authority lacks jurisdiction to review awards regardless of whether an election is offered an employee between the appellate procedure and the negotiated grievance procedure. Second, even if there were no review of arbitration awards available under the new system, this is not the type of matter that under AG, State of Oregon, the Authority has discretion to refuse to decline jurisdiction. Despite the Agency's claim that its exceptions address matters other than the removal itself, it is clear that the award resolves a "pure" removal matter and not a matter "relating to" a removal. As such, the Autho