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54:0240(33)AR - - National Air Traffic Association & DOT, FAA, Ithaca, NY // [ Department of Transportation; Federal Aviation Administration ] - - 1998 FLRAdec AR - - v54 p240

[ v54 p240 ]
The decision of the Authority follows:

54 FLRA No. 33














May 29, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Irwin J. Dean, 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator mitigated the grievant's removal to a 3-day suspension, but reinstated the grievant without backpay. We conclude that we lack jurisdiction over the exceptions. Accordingly, we dismiss the Union's exceptions.

II. Background and Arbitrator's Award

The grievant was employed as an air traffic control specialist. He was removed for misconduct and filed a grievance disputing his removal. The Arbitrator mitigated the removal to a 3-day suspension, but reinstated the grievant without backpay.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator's reinstatement of the grievant without backpay is contrary to the Back Pay Act, 5 U.S.C. § 5596, and the parties' collective bargaining agreement.

B. Agency's Opposition

The Agency contends that the award is not deficient. In addition, the Agency contends that the Authority has jurisdiction to resolve the Union's exceptions.

IV. Analysis and Conclusions

We conclude that we lack jurisdiction under section 7122(a) of the Statute to resolve the Union's exceptions to the Arbitrator's award. Section 7122(a) of the Statute pertinently provides:

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. Section 4303 covers removals and reductions-in-grade for unacceptable performance. Section 7512 covers removals, suspensions for more than 14 days, reductions in either grade or pay, and furloughs for 30 days or less.

We conclude that the award in this case relates to a matter similar to a matter covered under section 7512 and that the matter arose under another personnel system. We find that the grievant is employed in another personnel system. See U.S. Department of Transportation, Federal Aviation Administration and National Association of Air Traffic Specialists, 54 FLRA No. 32 (1998) (the new Federal Aviation Administration personnel management system constitutes another personnel system within the meaning of section 7121(f) of the Statute). We also find that as the award relates to the grievant's removal for misconduct, the award relates to a matter that is similar to a matter covered under section 7512. See id. Consequently, the award relates to a matter described in section 7121(f) of the Statute.

Under section 7122(a), exceptions to the award may not be filed with the Authority, and the Authority is without jurisdiction to resolve the exceptions. Accordingly, we dismiss the Union's exceptions for lack of jurisdiction.

V. Order

The Union's exceptions are dismissed.

(If blank, the decision does not have footnotes.)