American Federation of Government Employees, Local 429 (Union) and United States, Department of the Navy, Marine Corps Community Services, Parris Island, South Carolina (Agency)

[ v59 p545 ]

59 FLRA No. 93

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 429
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
MARINE CORPS COMMUNITY SERVICES
PARRIS ISLAND, SOUTH CAROLINA
(Agency)

0-AR-3694

_____

DECISION

December 23, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

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

      The Arbitrator found that the grievant's removal was for just cause. For the reasons that follow, we find that the Authority is without jurisdiction to review the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievant, a store detective at the Triangle Store at Parris Island, South Carolina Marine Corps Community Services, was terminated by the Agency for unauthorized absence from his post, disrespectful conduct toward his supervisor, and undue delay in carrying out orders. The Union filed a grievance on his behalf. The grievance was denied and the Union invoked arbitration challenging the removal. The parties stipulated to the following issue:

Did the Agency have just cause to remove [the grievant] from his position as security officer?
If not, what shall the remedy be?

Award at 1.

      The Arbitrator found that the removal was for just cause and he denied the grievance. In reaching this result, the Arbitrator found that

on the day he reported back to duty after a 30-day suspension for insubordination, which should have warned him of the need to improve his conduct immediately, [the Grievant] was guilty of (1) unauthorized absence from his post (leaving 27 minutes early), (2) disrespectful conduct towards his supervisor (rejecting the orders of his supervisor in front of customers and staff), (3) undue delay in carrying out orders (failing to report to [a superior] until 0845 hours despite having been ordered to do so the day before and on that morning), and (4) refusing to obey an order.

Id. at 8.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the Arbitrator "did not make a determination of credible evidence," and that the Arbitrator should have found the testimony of the grievant more credible than that of his supervisor. Exceptions at 1. The Union also argues that the Arbitrator should have examined the penalty and determined whether removal was appropriate.

B.     Agency's Opposition

      The Agency contends that the Union's exception is deficient because it fails to satisfy the requirements of 5 C.F.R. § 2425.2 in various respects. Opposition at 4. The Agency also disputes the Union's contentions on the merits.

IV.     Analysis and Conclusion

      This case presents the issue of whether the Arbitrator's award relates to a matter within the meaning of 5 U.S.C. §§ 7121(f) and 7122(a) so as to deprive the Authority of jurisdiction over the Union's exceptions. [*] 

Section 7122(a) of the Statute pertinently provides: [ v59 p546 ]
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 related to a matter described in section 7121(f) of this title).

      The matters described in § 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.

      The record reflects that the grievant in this case is a non-appropriated fund employee. The Authority has previously found that it lacks jurisdiction over exceptions to arbitral awards pertaining to the removal of non-appropriated fund employees. For example, in United States Dep't of the Navy, Navy Resale Activity, Guam, 40 FLRA 515 (1991), order denying motion for reconsideration of 40 FLRA 30, the Authority explained that, although non-appropriated fund employees are not covered by 5 U.S.C. § 7512, such employees are covered under another personnel system within the meaning of § 7121(f) of the Statute. The Authority determined that the removal of a non-appropriated fund employee was an action similar to a removal under 5 U.S.C. § 7512 and, as such, that the Authority was without jurisdiction to review the exceptions to the arbitrator's award under § 7121(f).

      We reach the same result here. As the award relates to a matter described in § 7121(f) of the Statute, the Authority is without jurisdiction to review the Union's exceptions to the award. Consequently, we dismiss the exceptions for lack of jurisdiction. See, e.g., NAGE, Local R5-169, 36 FLRA 348 (1990).

V.     Decision