American Federation of Government Employees, Council 236 (Union) and United States General Services Administration (Agency) (Authority decision, September 21, 2010)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award and dismisses one new argument. 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 identify an unfair labor practice issue.

Plain-English summary

AFGE Council 236 challenged an arbitration award involving the General Services Administration. The Authority found no basis to overturn the award under the standards for factual error or contract interpretation. It dismissed a separate allegation about managers' allocation of performance award money because the union had not raised it before the arbitrator. The brief decision does not describe the underlying grievance, the award's terms, or the facts the arbitrator found. The arbitration award remains in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a); 5 C.F.R. § 2429.5
• Outcome: Union exceptions denied; late-raised argument dismissed.
• Key point: A claim first raised in exceptions cannot be considered if it could have been presented to the arbitrator.

Full text (FLRA public release)

65 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

and

UNITED STATES GENERAL SERVICES ADMINISTRATION

(Agency)

0-AR-4671

_____

DECISION

September 21, 2010

_____

Before the Authority: Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Pastore, Jr. filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Agency filed an opposition to the Union’s exceptions.

Under § 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 and Authority precedent, the Authority concludes that the award is not deficient on the grounds raised in the exceptions and set forth in § 7122(a).[*] See U.S. Dep’t of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593-94 (1993) (award not deficient as based on a nonfact where excepting party either challenges a factual matter that the parties disputed at arbitration or fails to demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator); U.S. Dep’t of Labor (OSHA), 34 FLRA 573, 575 (1990) (award not deficient as failing to draw its essence from the parties’ collective bargaining agreement where excepting party fails to establish that the award cannot in any rational way be derived from the agreement; is so unfounded in reason and fact and so unconnected to the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or evidences a manifest disregard of the agreement).

Accordingly, the Union’s exceptions are denied.

[*] To the extent that the Union asserts that managers with “high salaries are able to assign . . . more money into their personal performance awards . . . provided they lower the number of employees receiving bonus money,” such assertion was not raised before the Arbitrator, and therefore, is not properly before the Authority under

5 C.F.R. § 2429.5. Exceptions at 3. See, e.g., AFGE, Local 1633, 64 FLRA 732, 733 (2010). Accordingly, we dismiss this exception.