Keesler Air Force Base and American Federation of Government Employees, Local 2670 (Authority decision, November 27, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying exceptions to an arbitration award. The order concerns an arbitration award under 5 U.S.C. § 7122. Section 7123(a)(1) generally excludes such orders from judicial review unless they involve an unfair labor practice under § 7118.

Plain-English summary

AFGE Local 2670 challenged Keesler Air Force Base's implementation of a civilian potential appraisal system under its collective bargaining agreement. The arbitrator found no violation of the agreement or incorporated regulations and denied the grievance. The Authority rejected the union's exceptions because disagreement with the arbitrator's contract interpretation did not show that the award was deficient. It also held that the union could not recast this contract grievance as a statutory unfair labor practice challenge to the award. The grievance denial remained in place.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(7) and 7122(a).
• Outcome: Union's exceptions denied; arbitrator's grievance denial upheld.
• Key point: A party that arbitrates a contract claim cannot use exceptions to relabel the same dispute as an unfair labor practice claim.

Full text (FLRA public release)

[ v16 p575 ]

16:0575(81)AR

The decision of the Authority follows:

16 FLRA No. 81

KEESLER AIR FORCE BASE
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2670
Union

Case No. 0-AR-505

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Bernard Marcus filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The Union filed a grievance that was submitted to arbitration claiming that the Activity's implementation of the Agency's civilian potential appraisal system violated the parties' collective bargaining agreement. Based on his interpretation and application of the parties' collective bargaining agreement, the Arbitrator determined that the Activity's implementation did not violate either the express terms of the parties' agreement or regulatory provisions incorporated in the agreement. Accordingly, as his award the Arbitrator denied the grievance.

In one of its exceptions the Union contends that the award is contrary to section 7116(a)(7) of the Statute. /1/ In support of this exception, the Union essentially argues that the Activity's implementation of the appraisal system was in conflict with the parties' pre-existing collective bargaining agreement and that by denying the grievance, the Arbitrator therefore improperly upheld the Activity's actions in violation of section 7116(a)(7).

The Authority concludes that this exception provides no basis for finding the award deficient. To the extent the Union is contending in this exception that the award is contrary to the Statute because the Arbitrator failed to find the Activity's actions violative of the collective bargaining agreement, the Authority has repeatedly held that such a contention constitutes nothing more than disagreement with the arbitrator's interpretation and application of the agreement and provides no basis for finding the award deficient. See, e.g., Philadelphia Regional Office, District Office Operations, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3186, 15 FLRA No. 41 (1984); Immigration and Naturalization Service, Department of Justice, U.S. Government and American Federation of Government Employees, Local No. 1656, 7 FLRA 549 (1982). Similarly, the Union's contention that the award is deficient because the Activity's actions allegedly constitute an unfair labor practice under section 7116(a)(7) also provides no basis for finding the award deficient. In Philadelphia Regional Office, 15 FLRA No. 41, at 2, the Authority held that when an employee or a union files a grievance rather than an unfair labor practice charge and the grievance is based on claimed violations of the collective bargaining agreement rather than provisions of the Statute, the union is thereby precluded from contending as a basis for finding the resulting arbitration award deficient that the agency's disputed actions constitute an unfair labor practice under the Statute. In terms of this case, the grievance submitted to and resolved by the Arbitrator was whether the Activity's implementation of the civilian potential appraisal system was in violation of the parties' collective bargaining agreement. As noted, the Arbitrator found no violation of the agreement and denied the grievance. Consequently, the Union is precluded from contending that the Arbitrator's award is contrary to section 7116(a)(7) of the Statute because the Activity allegedly implemented regulations in conflict with the parties' pre-existing agreement. See id. Thus, the Union's exception fails to establish that the award is contrary to section 7116(a)(7).

In its other exception the Union essentially contends that the award is deficient as a result of the Arbitrator's interpretation of the term "appropriate authorities" from the collective bargaining agreement. However, this constitutes nothing more than disagreement with the Arbitrator's interpretation and application of an express term of the parties' agreement and provides no basis for finding the award deficient.

Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., November 27, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Section 7116(a)(7) provides:

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency --

(7) to enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed(.)