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23:0420(61)AR - NTEU Chapter 49 and IRS, Indianapolis District -- 1986 FLRAdec AR



[ v23 p420 ]
23:0420(61)AR
The decision of the Authority follows:


 23 FLRA No. 61
 
 NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 49
 Union
 
 and
 
 INTERNAL REVENUE SERVICE
 INDIANAPOLIS DISTRICT
 Activity
 
                                            Case No. 0-AR-1199
 
                        ORDER DISMISSING EXCEPTIONS
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to a ruling of
 Arbitrator Alvin L. Goldman filed by the Activity under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
 
                          II.  ARBITRATOR'S AWARD
 
    The matter submitted to arbitration concerned the grievant's
 reduction in grade for unacceptable performance under 5 U.S.C. Section
 4303.  Before considering the merits of the grievance, the Arbitrator
 issued a final ruling and opinion on the Union's motion to require the
 Activity to make a prehearing disclosure of certain documents and
 information.  The Arbitrator essentially sustained the motion and
 ordered the Activity to produce a substantial portion of the material
 requested.  The Activity's exceptions in this case are to the
 Arbitrator's final ruling on the motion.
 
                      III.  ANALYSIS AND CONCLUSIONS
 
    We conclude that we are without jurisdiction to review the Activity's
 exceptions.  We find, apart from any consideration of whether a
 challenge to the ruling is interlocutory, that the ruling on the Union's
 motion is not separate and distinct from the matter of the grievant's
 reduction in grade.  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).
 
    As relevant to this case, the matters described in section 7121(f) of
 the Statute include those covered under 5 U.S.C. Section 4303 which
 applies to a reduction in grade for unacceptable performance.  Review of
 an arbitration award relating to such matters must be obtained in the
 same manner and under the same conditions as if the matter involved had
 been decided by the Merit Systems Protection Board.  Department of
 Defense Dependents Schools, Pacific Region and Overseas Education
 Association, 16 FLRA 34 (1984).
 
    Because we find that the Arbitrator's final ruling on the Union's
 motion relates to a matter covered by section 4303, exceptions to the
 award may not be filed with the Authority under section 7122(a) of the
 Statute.  See Headquarters, Department of the Army, Washington, D.C. and
 U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard
 Wood, Missouri, 22 FLRA No. 71 (1986), slip op. at 5 n.2 and Veterans
 Administration Medical Center, Hines, Illinois and Illinois Nurses
 Association, Hines Local Unit, 20 FLRA No. 61 (1985).  In VA Medical
 Center, Hines, Illinois, the Authority found that a supplemental award
 of attorney fees was not separate and distinct from the original award
 which related to a matter described in section 7121(f) of the Statute.
 Consequently, the Authority ruled that it was without jurisdiction to
 resolve the exceptions to the award of attorney fees and the exceptions
 were dismissed.
 
                               IV.  DECISION
 
    Accordingly, the Activity's exceptions are dismissed.
 
    Issued, Washington, D.C., September 25, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY