23:0802(102)AR - Justice, Bureau of Prisons and AFGE Local 1741 -- 1986 FLRAdec AR

 23 FLRA No. 102
 
 DEPARTMENT OF JUSTICE 
 BUREAU OF PRISONS
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1741
 Union
 
                                            Case No. 0-AR-1236
 
                        ORDER DISMISSING EXCEPTIONS
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Barry C. Brown filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The matter submitted to arbitration concerned the grievant's removal
 from the Federal Service.  Before addressing the merits of the
 grievance, the Arbitrator determined that the Union had failed to comply
 with the procedural requirements of the parties' collective bargaining
 agreement for invoking arbitration and that these procedural defects
 were highly prejudicial to the Agency's rights.  Accordingly, he
 concluded that the grievance was not arbitrable and that it must be
 dismissed.  The Union's exceptions in this case are to the Arbitrator's
 determination that the grievance was not arbitrable.
 
                       II.  ANALYSIS AND CONCLUSIONS
 
    We conclude that we are without jurisdiction to review the Union's
 exceptions.  Section 7122(a) provides, in part:
 
          Either part 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 adverse actions under 5 U.S.C. Section 7512, such as
 a removal.  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.
 Veterans Administration Medical Center, Kansas City, Missouri and
 American Federation of Government Employees, 23 FLRA No. 40 (1986).  In
 that regard, determinations of procedural arbitrability by arbitrators
 in grievances concernsing adverse actions under 5 U.S.C. Section 7512
 may be reviewed by the U.S. Circuit Court of Appeals for the Federal
 Circuit.  See Huey v. Department of Health and Human Services, 782 F.2d
 1575 (Fed. Cir. 1986).
 
    Because the Arbitrator's award in this case relates to the matter of
 the grievant's removal, exceptions to the award may not be filed with
 the Authority under section 7122(a) of the Statute.  To the extent that
 the Authority's decision in Naval Ordnance Station Louisville, Kentucky
 and Lodge No. 830, International Association of Machinists and Aerospace
 Workers, 11 FLRA 19, 20 n.3 (1983), is contrary to our holding in this
 case, that decision will no longer be followed.
 
                               IV.  DECISION
 
    Accordingly, the Union's exceptions are dismissed.
 
    Issued, Washington, D.C., October 31, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY