36:0348(43)AR - - NAGE Local R5-169 and Army, Army and Air Force Exchange Service, Fort Polk, LA - - 1990 FLRAdec AR - - v36 p348

[ v36 p348 ]
The decision of the Authority follows:

36 FLRA No. 43




LOCAL R5-169









July 19, 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 Louis V. Baldovin, Jr. filed by the Union 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 exceptions and the Union filed a response to the Agency's opposition.

The Arbitrator found that management had just cause to terminate the grievant. For the reasons that follow, we conclude that the Authority is without jurisdiction to review the Union's exceptions under section 7122(a) of the Statute.

II. Background and Arbitrator's Award

The Arbitrator found that the grievant, a full time lead sales associate for the Army and Air Force Exchange, Fort Polk, a nonappropriated fund (NAF) instrumentality, was unable to work on November 27 and 28, 1988, because her child was ill. The Arbitrator noted, however, that the grievant conceded that she claimed pay for 8-hour days on November 27 and 28 even though "in fact, she did not work those days." Award at 3. Although the grievant asserted that she had deducted the time from overtime she had accumulated, the Agency terminated the grievant for claiming pay for hours that she did not work. A grievance was filed and submitted to arbitration.

The Arbitrator rejected the grievant's claim that because she substituted "uncompensated [over]time she maintains she worked, for compensated time she conceedes [sic] that she did not work, . . . she did not take any money she was not entitled to receive." Id. at 7-8. The Arbitrator found that although management occasionally asked employees if they could remain at work to prepare the facility for inspection without authorizing overtime pay, the grievant knew that she would not be paid, or granted compensatory time, for these occasions. In addition, the Arbitrator noted the grievant's assertion that she had accumulated sufficient unpaid hours to cover the days when she claimed pay for hours not worked. The Arbitrator concluded, however, that the grievant could not "engage in self help to resolve what may constitute a claim under the Fair Labor Standards Act." Id. at 9.

The Arbitrator also rejected the Union's argument that the Agency must bring new charges against the grievant because incorrect dates were used in notifying the grievant of her termination. The Arbitrator found that the grievant knew the reason for her termination and had "a fair opportunity" to respond to management's allegations. Id. The Arbitrator concluded that the Agency had just cause to terminate the grievant and he denied the grievance.

III. Positions of the Parties (*)

The Union asserts that the Arbitrator's award is deficient because it is inconsistent with law and because it fails to draw its essence from the parties' collective bargaining agreement. According to the Union, the Arbitrator's rejection of the Union's argument that the Agency must bring new charges against the grievant because incorrect dates were used in the notice of proposed termination resulted in the creation of "new charges" against the grievant. Exceptions at 3. The Union asserts that, by creating new charges, the Arbitrator circumvented the grievant's right to reply to the new allegations. The Union also claims that the Arbitrator failed to consider numerous mitigating factors which would establish that the penalty was excessive, and that the Arbitrator erred when he failed to decide an overtime pay claim presented to him.

The Agency asserts that the Authority does not have jurisdiction to review the arbitration award. The Agency notes that because the Army and Air Force Exchange, Fort Polk, is a NAF instrumentality, its employees, including the grievant, are covered under another personnel system, within the meaning of section 7121(f) of the Statute. Accordingly, the Agency maintains that, pursuant to section 7122(a) of the Statute, the Authority has no jurisdiction to review the award addressing the grievant's termination in this case.

IV. Analysis and Conclusions

We find that the Authority is without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.

Section 7122(a) provides, in pertinent part, as follows:

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) of the Statute include serious adverse actions covered under 5 U.S.C. § 7512, such as removals or terminations for cause. See, for example, U.S. Department of the Army, Military District of Washington, and Federal Employee