35:1272(146)AR - - Army, Military District of Washington and Federal Employees and Transportation Workers, Local 960 - - 1990 FLRAdec AR - - v35 p1272
[ v35 p1272 ]
The decision of the Authority follows:
35 FLRA No. 146
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
MILITARY DISTRICT OF WASHINGTON
FEDERAL EMPLOYEES AND TRANSPORTATION WORKERS
ORDER DISMISSING EXCEPTIONS
May 31, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Richard I. Bloch. A grievance over the removal of an Agency civilian employee was submitted to arbitration. The Arbitrator determined that the grievance was untimely filed and, therefore, ruled that the grievance was not arbitrable.
The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions contending, among other things, that the Authority is without jurisdiction to review the exceptions. The Authority issued an Order requesting the Union to show cause why its exceptions should not be dismissed. The Union filed a response to the Authority's Order.
For the reasons stated below, we conclude that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.
II. Background and Arbitrator's Award
The Agency removed a civilian employee from Federal service. The Union filed a grievance challenging the removal. The grievance was subsequently submitted to arbitration. Before ruling on the merits of the case, the Arbitrator first considered the issue of whether the grievance was timely filed. The Arbitrator determined that the grievance was untimely and found, in accordance with the parties' collective bargaining agreement, that the grievance was not arbitrable.
III. Positions of the Parties
A. Union's Exceptions
The Union takes issue with the Arbitrator's finding that "the grievance was untimely and therefore . . . was unarbitrable." Exceptions at 1. The Union contends that the Arbitrator's ruling that the grievance was untimely filed "rested on the sole testimony of one witness." Id. Further, the Union argues that the Arbitrator should not have allowed the Agency to raise the issue of timeliness because "[t]he issue of timeliness was never raised [until] two and a half years after the grievance was filed." Id., emphasis in original. Finally, the Union contends that because the Arbitrator did not rule on the merits of the case, he "did not get to hear pertinent facts in the case which may have impacted on the final decision he made." Id. at 2.
B. Agency's Opposition
The Agency contends that the Authority does not have jurisdiction under section 7122(a) of the Statute to review the exceptions because the award "involves a removal of a competitive service employee under section 7512 [of the Statute]." Id. The Agency argues that "where the issue [before the Arbitrator] is not separate and distinct from the original issue of the grievant's removal, the Arbitrator's award relates to a matter described in section 7121(f) of the Statute [and is excluded under section 7122(a)]." Id. at 3, quoting U.S. Army Armament Research, Development, and Engineering Center (ARDEC), Dover, New Jersey and National Federation of Federal Employees (NFFE), Local 1437, 24 FLRA 837, 839 (1986).
The Agency asserts that the allegations made by the Union's exceptions amount to "a disagreement with the [A]rbitrator's evaluation of the evidence and testimony [and] are no more than an attempt to relitigate the issue[.]" Id. at 3-4. Finally, the Agency asserts that the exceptions should be dismissed as procedurally deficient.
IV. Order to Show Cause and Union's Response
By an Order dated April 18, 1990, the Authority directed the Union to show cause "why its exceptions should not be dismissed because they concern a matter in which the Authority lacks jurisdiction." The Order stated that section 7122(a) of the Statute provides, in pertinent part:
Either party to arbitration under [the Statute] 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 [the Statute]).
Further, the Order stated that "[t]he matters described in section 7121(f) of the Statute include adverse actions, such as removals, under 5 U.S.C. § 7512. The Authority does not have jurisdiction to resolve exceptions to the Arbitrator's award to the extent that the award applies to competitive service employees within the meaning of 5 U.S.C. § 7511."
In its response to the Order to Show Cause, the Union notes that section 2425.3(b) of the Authority's Regulations provides that "[t]he [A]uthority will not consider an exception with respect to an award relating to a removal, suspension for more than fourteen (14) days, reduction in grade, reduction in pay, or furlough of [thirty] (30) days or less covered under [5 U.S.C. § 7512]." Response (emphasis in original). The Union asserts that the Arbitrator's award did not relate to a removal, but rather that "[t]he award related to the issue of timeliness of th