National Association of Government Employees, Local R12-35 (Union) and United States Department of the Navy, Navy Facilities Engineering Command Southwest (Agency) (Authority decision, January 15, 2015)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award. The arbitration exclusion in 5 U.S.C. § 7123(a)(1) generally limits judicial review of Authority orders involving arbitral awards.

Plain-English summary

A union challenged an arbitration award involving the Navy Facilities Engineering Command Southwest. The Authority issued an abbreviated decision and gave no details about the underlying grievance or the award's terms. It dismissed the union's argument that the award failed to follow the labor agreement because the union could have raised that argument before the arbitrator. The Authority also found no basis under its arbitration-review standard to set aside the award on the remaining grounds. It denied the remaining exceptions, so the award stood.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a); 5 C.F.R. §§ 2425.4(c), 2425.7, 2429.5
• Outcome: One union exception was dismissed, the remaining exceptions were denied, and the arbitration award stood.
• Key point: An argument that could have been presented to the arbitrator cannot first be raised in exceptions to the Authority.

Full text (FLRA public release)

68 FLRA No. 33

NATIONAL ASSOCIATION

OF GOVERNMENT EMPLOYEES

LOCAL R12-35

(Union)

and

UNITED STATES

DEPARTMENT OF THE NAVY

NAVY FACILITIES

ENGINEERING COMMAND SOUTHWEST

(Agency)

0‑AR‑5080

_____

DECISION

January 15, 2015

_____

Before the Authority: Carol Waller Pope, Chairman, and

Ernest DuBester and Patrick Pizzella, Members

This matter is before the Authority on exceptions to an award of Arbitrator Walter N. Kaufman filed by the Union under § 7122(a) of the Federal Service
Labor-Management Relations Statute (the Statute)[1] and part 2425 of the Authority’s Regulations.[2] The Agency filed an opposition to the Union’s exceptions.

We have determined that this case is appropriate for issuance as an expedited, abbreviated decision under § 2425.7 of the Authority’s Regulations.[3]

As a preliminary matter, §§ 2425.4(c) and 2429.5 of the Authority’s Regulations bar consideration of the Union’s exception that the award fails to draw its essence from the parties’ agreement.[4] The Union should have known to raise this argument before the Arbitrator, but the record does not reflect that the Union did so. Therefore, we dismiss this exception.[5]

Under § 7122(a) of the Statute,[6] 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, we conclude that the award is not deficient on the groundsraised in the exception and set forth in § 7122(a).[7]

Accordingly, we dismiss, in part, and deny, in part, the Union’s exceptions.

[1] 5 U.S.C. § 7122(a).

[2] 5 C.F.R. pt. 2425.

[3] Id. § 2425.7 (“Even absent a [party’s] request, the Authority may issue expedited, abbreviated decisions in appropriate cases.”).

[4] Id. §§ 2425.4(c), 2429.5.

[5] U.S. DHS, U.S. CBP, 66 FLRA 335, 337-38 (2011) (where a party should have known to make an argument to the arbitrator, but the record does not indicate that the party did so, §§ 2425.4(c) and 2429.5 of the Authority’s Regulations bar the party from raising that argument to the Authority).

[6] 5 U.S.C. § 7122(a).

[7] U.S. Dep’t of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995) (award not deficient on ground that arbitrator exceeded his or her authority where excepting party does not establish that arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, disregarded specific limitations on his or her authority, or awarded relief to those not encompassed within the grievance); 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 a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result).