General Services Administration and American Federation of Government Employees, Local 2600 (Authority decision, April 22, 1988)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award rejecting an employee's temporary promotion grievance. 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

A General Services Administration employee sought a temporary promotion and higher pay for duties he said he performed above his grade. An arbitrator found that the agency had not violated the labor agreement by declining the promotion. The union argued that the arbitrator had framed the issues incorrectly and failed to decide a racial discrimination claim. The Authority found no basis to disturb the arbitrator's formulation of the issues after the parties failed to agree on them. It denied the exceptions, leaving the grievance denial in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union's exceptions denied; temporary promotion grievance denial left in place.
• Key point: Disagreement with an arbitrator's formulation of disputed issues did not establish a deficient award here.

Full text (FLRA public release)

[ v31 p1190 ]
31:1190(104)AR

The decision of the Authority follows:

31 FLRA NO. 104

GENERAL SERVICES ADMINISTRATION

Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2600

Union

Case No. 0-AR-1479

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of M. Zane Lumbley. The Arbitrator found that the Activity did not violate the parties' agreement by refusing to afford the grievant a temporary promotion. Consequently, he dismissed the grievance. The Union filed exceptions 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 Agency did not file an opposition to the Union's exceptions.

We conclude that the Union has not established that the Arbitrator decided an issue that was not submitted and failed to decide the issue that was submitted. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant claimed that he was entitled to a temporary promotion because he performed the duties of a higher graded position for more than 30 days. The Activity contended that the grievance was not grievable or arbitrable because it concerned a classification matter. The parties submitted the arbitrability issue to an arbitrator who ruled that the matter of whether the grievant should have been temporarily promoted was grievable and arbitrable. The parties then submitted the matter to arbitration before Arbitrator Lumbley.

The parties were unable to agree on a statement of the issue to be resolved. Consequently, the Arbitrator stated the issues to be:

1. Did the (Activity) violate the agreement by refusing to
   afford a temporary promotion and increased compensation to (the grievant) between January 1984 and April 1987?

2. If the answer to question one is in the affirmative, was the
   refusal to promote and compensate based on considerations of race?

As to the first issue, the Arbitrator concluded that the Activity had not violated the parties' collective bargaining agreement by refusing to temporarily promote the grievant. The Arbitrator determined that under Article 18, Section 5 of the parties' agreement, an employee must be assigned to a higher graded position in order to be entitled to a temporary promotion. The Arbitrator found that the grievant had not been assigned to a higher graded position and that, consequently, a temporary promotion was not appropriate.

Consistent with his resolution of the first issue, the Arbitrator declined to decide whether the refusal to promote the grievant was based on considerations of race. The Arbitrator stated that because he found no requirement under the parties' agreement that the grievant be temporarily promoted, he would not assess the Activity's reasons for not doing so. Accordingly, the Arbitrator dismissed the grievance.

III. Discussion

The Union contends that the award is deficient because the Arbitrator decided an issue that was not submitted to him and failed to decide the issue that was submitted to him, specifically the issue of race discrimination. The Union maintains that by finding that the grievant was not entitled to a temporary promotion under the parties' agreement, the Arbitrator resolved an issue that was not before him. The Union claims that the Arbitrator improperly considered an arbitrability issue which had been decided in the previous arbitration before another arbitrator. The Union asserts that the only issue which was properly before the Arbitrator in this case was whether the refusal to promote the grievant was motivated by racial discrimination and not whether the issue was arbitrable. Thus, the Union argues that the award is deficient because the Arbitrator failed to resolve the issue of racial discrimination.

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish 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. The Union simply disagrees with the Arbitrator's formulation of the issues. In view of the substantial deference accorded an arbitrator's formulation of the issues submitted in the absence of a stipulation, exceptions which merely disagree with the arbitrator's formulation of the issues provide no basis for finding the award deficient. For example, Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL - CIO, Local 2429, 24 FLRA 516 (1986). We further note that the Arbitrator formulated the issues before him after the parties were unable to agree on the issues which were before the Arbitrator.

IV. Decision

Accordingly, the Union's exceptions are denied.

Issued, Washington, D.C., April 22, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY