40:0030(4)AR - - Navy Resale Activity, Guam and AFGE Local 1689 - - 1991 FLRAdec AR - - v40 p30
[ v40 p30 ]
The decision of the Authority follows:
40 FLRA No. 4
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 Thomas Q. Gilson filed by the Agency 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 Union did not file an opposition to the Agency's exceptions.
In his award, the Arbitrator dismissed the grievance of an employee who was removed from his position for receiving stolen goods. The Arbitrator also rescinded the Agency's action barring the employee from the U.S. Naval Station and ordered the Agency to pay the employee $500 in lieu of damages for lost wages from a job at a civilian restaurant located on the Naval Station. The Agency has filed exceptions to that portion of the award. For the reasons stated below, we conclude that we are without jurisdiction under section 7122(a) of the Statute to review the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant was a nonappropriated fund employee of the Navy Exchange, U.S. Naval Station, Guam. The Agency removed him from his position for the offense of receiving property stolen from the Exchange. The Agency also issued a letter to the grievant advising him that he was permanently prohibited from entering the property of the U.S. Naval Station, Guam. As a result of being barred from the Station, the grievant was unable to report to his job at a fast-food restaurant located on the Station. The grievant filed a grievance protesting his removal. The grievance was submitted to arbitration on the following stipulated issue:
Was the termination of [the grievant] for receiving goods and [sic] stolen from the Naval Exchange justified under the Collective Bargaining Agreement and the applicable rules and regulations? If not, what shall the remedy be?
Award at 6. The Arbitrator concluded that the Agency was justified in removing the grievant and dismissed the grievance over the removal. However, the Arbitrator also found that the Agency violated its own rules and regulations when it barred the grievant permanently from the Naval Station. He ordered that the grievant's "debarment from the base shall be rescinded and he shall be reimbursed in the amount of $500 in lieu of damages for the loss of his job at [the] restaurant." Id. at 17.
III. Agency's Exceptions
The Agency filed exceptions to that portion of the Arbitrator's award that orders that the grievant's debarment from the Station be rescinded and that $500 be paid in lieu of damages for loss of the job at the restaurant. The Agency maintains that that portion of the Arbitrator's award exceeds the Arbitrator's authority and is contrary to law.
IV. Analysis and Conclusion
We find that the Authority is without jurisdiction under section 7122(a) of the Statute to review the Agency'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. See, for example, National Treasury Employees Union, Chapter 202 and Department of the Treasury, Financial Management Service, Headquarters Office, 32 FLRA 1075 (1988) (Authority had no jurisdiction to consider agency exceptions to award that reinstated grievant who had been removed for alcohol-related causes); Defense Logistics Agency and American Federation of Government Employees, Local No. 2501, 31 FLRA 754 (1988) (Authority had no jurisdiction to consider agency exceptions to award of interest where arbitrator reduced a removal to a 5-day suspension). Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703.
The Arbitrator's award in this case relates to the removal of the grievant. That is a matter covered by 5 U.S.C. § 7512 and is a matter described in section 7121(f) of the Statute. Consequently, we are without jurisdiction to consider the Agency's exceptions and the exceptions will be dismissed.
The Agency's exceptions are dismissed.
(If blank, the decision does not have footnotes.)
*/ On March 12, 1991, the Union's exceptions were dismissed as untimely filed. U.S. Department of the Navy, Navy Resale Activity, Guam and American Federation of Government Employees, Local 1689, 39 FLRA No. 94 (1991).