51:1651(138)AR - - DOD, Army and Air Force Exchange Service, Dallas, TX and AFGE Local 3854 - - 1996 FLRAdec AR - - v51 p1651

[ v51 p1651 ]
The decision of the Authority follows:

51 FLRA No. 138










LOCAL 3854





July 29, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Edward E. Hales 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator determined that the grievant had been unjustly separated during her probationary period and ordered her reinstated with backpay.

We conclude that we lack jurisdiction over the exceptions under section 7122(a) of the Statute. Accordingly, we dismiss the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant was separated from employment during her probationary period. The Agency stated that the separation was a nonprejudicial action under the provisions of Army Regulation (AR) 60-21/Air Force Regulation (AFR) 147-15 (Exchange Service Personnel Policies) and was not for cause. The Union filed a grievance on her behalf claiming that she was improperly separated from employment.

At arbitration, the Agency asserted that the grievance was not arbitrable because the parties' collective bargaining agreement excludes grievances over separations during the probationary period when they are not for cause. The Union argued that the grievant was separated for cause and that, therefore, the grievance was not excluded. The Union also argued that the grievant should be reinstated because the separation was not for just cause. The Arbitrator found that the grievance was arbitrable and that the grievant's separation was not justified. As his award, the Arbitrator reinstated the grievant with backpay.

III. Exceptions

A. Agency's Contentions

The Agency contends that the award is contrary to AR 60-21/AFR 147-15 and section 7106(b)(1) of the Statute. The Agency argues that the award violates AR 60-21/AFR 147-15 because the Arbitrator applied the wrong legal standard in evaluating the grievance and because the award requires management to conduct investigations. The Agency argues that the award is contrary to management's right to determine the methods and means of performing work because the award regulates the manner in which the Agency must deal with customers.

B. Union's Opposition

The Union contends that the Agency's exceptions should be dismissed for lack of jurisdiction because the award relates to the grievant's removal.

IV. Analysis and Conclusions

We conclude that we lack jurisdiction under section 7122(a) of the Statute to resolve the Agency's exceptions to the Arbitrator's award. Section 7122(a) provides, in pertinent part:

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) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems.(1) Section 7121(e) of the Statute gives an option to certain employees who decide to challenge a matter covered under section 4303 or 7512 or similar matters arising under other personnel systems. These employees can either: (1) file a grievance over the matter under a negotiated grievance procedure (if the matter is not excluded from the scope of the procedure); or (2) appeal the matter to the Merit Systems Protection Board (MSPB) (if the employee is within the MSPB's jurisdiction) or raise the matter under whatever appellate procedures, if any, are applicable (if the employee is within another personnel system).

Section 7121(f) addresses the review of arbitration awards resolving grievances encompassed by section 7121(e). For employees in the general Federal civil service, section 7121(f) provides that, if an employee has chosen the grievance option, the resulting award has the same review as if the matter had been appealed to the MSPB. Specifically, the award is appealable to the U.S. Court of Appeals for the Federal Circuit. For employees in other personnel systems, section 7121(f) provides that, if an employee has filed a grievance over a matter similar to one covered under section 4303 or 7512, the resulting award has the same review as if the administrative appeal option, if one exists, was chosen. Under section 7122(a), the Authority is without jurisdiction to review any of these awards.

Pursuant to this statutory scheme, the Authority is deprived of jurisdiction over an award relating to an employee in the general Federal civil service when such an employee has the discretion to raise the matter covered under section 4303 or 7512 under the negotiated grievance procedure or before the MSPB, but not both. Of course, to exercise that option, the employee must have standing to bring an action to the MSPB: the individual must qualify as an employee defined in 5 U.S.C § 4303(e) for section 4303 actions, or 5 U.S.C. § 7511 for section 7512 actions.(2) Accordingly, for the general Federal civil service, the Authority has examined the employee status of the grievant in determining whether an arbitration award relates to a matter covered under section 4303 or 7512. E.g., U.S. Department of the Army, Army Reserve Personnel Center and American Federation of Government Employees, Local 900, 34 FLRA 319 (1990) (in dismissing exceptions for lack of jurisdiction, the Au