American Federation of Government Employees, Local 2532 and U.S. Small Business Administration (Authority decision, August 31, 1987)

Final FLRA decision. The Authority denies the union's exceptions to an arbitrator's dismissal of a reprimand grievance because arbitration was not timely invoked under the parties' agreement. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

AFGE Local 2532 challenged an arbitrator's dismissal of a Small Business Administration employee's reprimand grievance. The arbitrator found that the employee's 1985 letter did not properly notify the agency of a union decision to arbitrate under the agreement and that the union's 1986 referral came too late. The Authority held that the union had not shown the arbitrator's interpretation of the agreement to be legally deficient. It left the dismissal in place and did not reach the arbitrator's separate discussion of the employee's unfair labor practice charge.

Decision snapshot

• Authority: Exceptions to arbitration awards under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; grievance dismissal stands.
• Key point: The agreement's procedure for invoking arbitration was for the arbitrator to interpret, and the union showed no basis to overturn his timeliness ruling.

Full text (FLRA public release)

[ v28 p817 ]
28:0817(107)AR

The decision of the Authority follows:

28 FLRA NO. 107

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL NO. 2532

Union

and

U.S. SMALL BUSINESS
ADMINISTRATION

Agency

Case No. 0-AR-1377

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator James M. Harkless 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.

II. Background and Arbitrator's Award

A grievance was filed on August 7, 1985, protesting a reprimand. The award in this case results from an invocation of arbitration dated October 17, 1986. A preliminary issue presented was whether arbitration of the grievance was timely invoked. The Arbitrator determined that under Article 41 of the parties' master agreement, the grievance was not timely referred to arbitration. He noted that under Article 41, Section 1 the Union must notify the Agency that a grievance is being referred to arbitration. He concluded that the grievant's letter of October 7, 1985, invoking arbitration and identifying himself as having been designated by the union membership as an official representative with the authority to invoke arbitration, was not a proper communication to the Agency of a decision to arbitrate a grievance under the terms of Article 41, Section 1. Consequently, finding on this basis alone that the attempt to invoke arbitration on October 7, 1985, was defective and that the 1986 referral to arbitration was untimely, the Arbitrator as his award dismissed the grievance. 1

III. Discussion

In its exceptions the Union contends that the Arbitrator's finding that the 1985 invocation of arbitration was defective because it was not made by the Union, is not supported by law, the master agreement, or the evidence. The Union further contends that the Arbitrator should have waived the time requirement and found that the 1986 invocation to be timely. The Union also contends that the Arbitrator erred by finding that the grievant's unfair labor practice charge precluded arbitration of the grievance over his reprimand.

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; specifically, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. See, for example, Immigration and Naturalization Service, Department of Justice, U.S. Government and American Federation of Government Employees, Local No. 1656, 7 FLRA 549 (1982) (An exception, contending that the arbitrator's finding that arbitration had not been invoked in accordance with the collective bargaining agreement violated the Statute by interfering with the union's right to designate its own agents, was denied. The exception challenged the arbitrator's interpretation of the agreement and his ruling that the procedural requirements for submitting grievances to arbitration had not been met which are matters solely for resolution by the arbitrator.) Since we conclude that the Arbitrator's award dismissing the grievance, because it was not timely referred to arbitration, is not deficient, we do not address the Arbitrator's discussion of the effect of the unfair labor practice charge filed by the grievant. See National Federation of Federal Employees, Local 1332 and United States Army Materiel Development and Readiness Command Headquarters, 7 FLRA 612 (1982) (when an alternative disposition has not been shown to be deficient, exceptions to an independent disposition provide no basis for finding award deficient).

Accordingly, the union's exceptions are denied.
2

Issued, Washington, D.C., August 31, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 The Arbitrator also discussed the
effect of an unfair labor practice charge filed by the grievant and determined that the filing of the charge independently supported the dismissal of the grievance.

Footnote 2 We have not considered any matter
raised in the Agency's opposition that was not raised in the union's exceptions other than the Agency's contention that this matter is moot, which we reject. Accordingly, we have not considered the Union's reply to the Agency opposition, and we deny the Agency's motion to file a response to the Union's reply.