Social Security Administration and American Federation of Government Employees, SSA General Committee (Authority decision, November 8, 1988)

Final FLRA decision. The Authority dismisses the union's arbitration exceptions as untimely because the arbitrator's later clarification did not change the original award. 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

An arbitrator ruled that AFGE's SSA General Committee had to pay the costs of a witness it presented in an arbitration case. Neither party challenged that cost ruling in its initial exceptions, and the Authority denied the exceptions that were filed. Months later, the arbitrator clarified the original award but kept the witness cost ruling unchanged. The union filed new exceptions after that clarification. The Authority held that exceptions to a clarification are allowed only when it changes the award in a way that creates the alleged problem, so these exceptions were too late to challenge the original cost ruling.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union's exceptions to the unchanged witness cost ruling dismissed as untimely.
• Key point: Restating an award does not reopen the deadline to challenge an unmodified ruling.

Full text (FLRA public release)

[ v33 p821 ]
33:0821(93)AR

The decision of the Authority follows:

33 FLRA No. 93

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY
ADMINISTRATION

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

SSA GENERAL
COMMITTEE

0-AR-1606

ORDER DISMISSING
EXCEPTIONS

On August 29, 1988, the Union filed exceptions to Arbitrator Charles Feigenbaum's clarification of an original award, pursuant to 5 U.S.C. § 7122(a) and 5 C.F.R. § 2425.1. The Agency filed an opposition. For the reasons set out below, the Union's exceptions must be dismissed as untimely.

This case involves a dispute regarding the payment of costs resulting from the appearance of a witness on behalf of the Union at an arbitration proceeding. In an award dated August 13, 1987, the Arbitrator ruled in part that the Union's witness was not necessary and "the costs associated with his appearance shall be borne by the Union." The Agency and the Union filed exceptions to the Arbitrator's award. However, neither party excepted to the Arbitrator's ruling regarding the payment of costs for the Union's witness. The Authority denied all exceptions in Social Security Administration and American Federation of Government Employees, SSA General Committee, 30 FLRA 381, issued November 30, 1987.

By letter dated May 26, 1988, the Agency requested the Arbitrator for a clarification of the August 13, 1987, award. On August 1, 1988, the Arbitrator issued a clarification in response to the Agency's letter. In the clarification, the Arbitrator restated his prior ruling that the Union had to pay the costs for its witness and the meaning of that ruling.

The Authority's review of the record in this case raises the question of whether the Union may file exceptions to the Arbitrator's clarification of the August 13, 1987, award. The Authority has repeatedly held that exceptions may be filed in regard to an Arbitrator's clarification of an award only when the Arbitrator modifies the award in the clarification. U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 23 FLRA 157 (1986). The modification must give rise to the deficiencies alleged in the exceptions. Id.

In this case, it is clear that in his clarification of the August 13, 1987, award, the Arbitrator did not modify his original award. Rather, the Arbitrator reaffirmed his prior ruling that the costs of the Union's witness must be paid by the Union. There is nothing in the Arbitrator's clarification of the award which gives rise to any deficiencies to which exceptions might be filed. Thus, the Union is in effect seeking review of the August 13, 1987, award and the Union's exceptions filed August 29, 1988, are clearly untimely. Accordingly, the Union's exceptions must be dismissed.

For the Authority.

Issued, Washington, D.C.

__________
Clyde B. Blandford,
Jr.
Acting Executive Director

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