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28 FLRA NO. 3

U.S. ARMY MISSILE COMMAND

                  Activity

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1858

                    Union

Case No. O-AR-1287

ORDER DISMISSING EXCEPTIONS

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Michael Jay Jedel filed by both the Union and 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.

II. Background and Arbitrator's Award

The grievant received an unsatisfactory performance rating and filed a grievance disputing the appraisal. After the grievance was filed, the grievant was removed for unacceptable performance. The grievance over his performance rating was not resolved and was submitted to arbitration. Apparently, the grievant also filed a grievance over his removal that was stayed pending the outcome of his grievance over his performance appraisal.

The Arbitrator sustained the grievance and directed that the unsatisfactory performance appraisal be replaced with an appraisal of fully successful. The Arbitrator also ordered that the grievant be reinstated to the position from which he was removed or a comparable position with backpay and benefits retroactive to the date of his removal. However, the Arbitrator denied the request for attorney fees. 

The Agency has filed exceptions to the Arbitrator's award sustaining the grievance, directing the grievant's performance rating be changed, and ordering the grievant reinstated with backpay. The Union has filed an exception to the Arbitrator's denial of attorney fees while at the same time asserting that the Authority has no jurisdiction to resolve exceptions to the award because the award relates to the removal of the grievant for unacceptable performance under 5 U.S.C. 4303.

III. Analysis and Conclusion

We conclude that we are without jurisdiction to review the parties' exceptions. 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).

As relevant to this case, the matters described in section 7121(f) of the Statute include removals for unacceptable performance under 5 U.S.C.4303. Review of an arbitration award relating to such matters must be obtained in the same manner and under the same conditions as if the matter involved had been decided by the Merit Systems Protection Board. National Treasury Employees Union Chapter 49 and Internal Revenue Service, Indianapolis District, 23 FLRA No. 61 (1986).

In this case the award pertains to the grievant's performance appraisal which was the basis for the grievant's removal for unacceptable performance, directs the grievant's reinstatement, and denies the request for attorney fees. Since the award in these respects relates to the removal for unacceptable performance, we find that both the Agency's and the Union's exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute.

IV. Decision and Order

For these reasons, and apart from any other considerations, we conclude that we are without jurisdiction to review the exceptions filed by the Agency and the Union and they are dismissed. 1

 

Issued, Washington, D.C., July 16, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

FOOTNOTES

Footnote 1 The Agency also requested a stay of the award when it filed its exceptions to the award with the Authority on December 31, 1986. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.

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