U.S. Department of Defense, Defense Commissary Agency, Norfolk, Virginia and National Association of Government Employees, Local R4-45 (Authority decision, January 29, 1999)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

The Defense Commissary Agency challenged an arbitration award involving its Norfolk operation. The Authority denied the agency’s exceptions under 5 U.S.C. § 7122(a). It rejected the agency’s reliance on a Merit Systems Protection Board decision because the agency’s action was not one covered by 5 U.S.C. § 4303 or § 7512, the circumstances in which the arbitrator would be bound by the Board’s substantive standards. The short published decision does not describe the underlying grievance or remedy.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a); MSPB standard limits under §§ 4303 and 7512.
• Outcome: Agency exceptions denied; arbitration award left in place.
• Key point: MSPB substantive standards bind arbitrators for the covered personnel actions identified by statute.

Full text (FLRA public release)

[ v55 p168 ]

55 FLRA No. 28

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

NORFOLK, VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R4-45

(Union)

0-AR-3110

_____

DECISION

January 29, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.

This matter is before the Authority on exceptions to an award of Arbitrator James J. Sherman filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

Under section 7122(a) of the Statute, an award is deficient if it is contrary to any law, rule, or regulation; or it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Upon careful consideration of the entire record in this case, the Authority concludes that the award is not deficient on any of the grounds raised in the exceptions and set forth in section 7122(a).

In particular, we reject the Agency's reliance on Parker v. Department of the Interior, 4 MSPR 97 (1980). The Authority has repeatedly held that arbitrators are bound by the same substantive standards as the Merit Systems Protection Board (MSPB) only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. See American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 51 FLRA 1302, 1306 (1996). The actions taken by the Agency in this case are not covered under 5 U.S.C. § 4303 or 7512. Therefore, the Arbitrator was not bound to follow the same substantive standards that the MSPB follows. [n1]

Accordingly, the Agency's exceptions are denied.

Footnote # 1 for 55 FLRA No. 28

Member Wasserman would also find that, to the extent the
Agency's exception could be viewed as raising the application
of 29 C.F.R. § 1960.46, the Arbitrator's findings are consistent
with that regulation.