Office of Personnel Management and AFGE Local 32 (Authority decision, September 18, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An interest arbitrator resolved a bargaining impasse over union representation during classification desk audits. OPM argued that the award improperly treated the statutory right to representation during investigatory examinations as applying to desk audits. The Authority agreed that the statute did not itself require representation at a nondisciplinary desk audit, but found that the award established a negotiated contract term. It denied OPM's exception.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a); investigatory representation under § 7114(a)(2)(B).
• Outcome: Agency exception denied; desk audit representation contract term left in place.
• Key point: A negotiated desk audit representation term could stand even though the statute did not independently require it.

Full text (FLRA public release)

[ v20 p183 ]

20:0183(23)AR

The decision of the Authority follows:

20 FLRA No. 23

OFFICE OF PERSONNEL MANAGEMENT
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 32, AFL-CIO
Union

Case No. 0-AR-950

DECISION

This matter is before the Authority on exceptions to the interest arbitration award of Arbitrator L. Lawrence Schultz filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The dispute before the Arbitrator concerned a negotiation impasse of the parties. The Federal Service Impasses Panel had directed that the impasse be referred to an arbitrator who shall have the authority to issue a binding decision resolving the impasse. As his award pertaining to union representation at classification desk audits, the Arbitrator directed that Article 9, Section 4 of the parties' collective bargaining agreement shall be as follows:

When an employee believes that his/her position description or classification is inaccurate an attempt to resolve the issue will be made with the immediate supervisor. If the difference cannot be resolved, OPM procedures for administrative review and classification appeal will be explained to the employee. The employee may elect to be accompanied or assisted by a Local 32 representative in dealings with the Employer concerning such administrative review and appeal. Since a desk audit is a fact-finding procedure involving discussion between the employee and the classifier on matters specifically related to the job, there shall be the right to representation during a desk audit should the employee reasonably believe unfavorable action may occur. In discussions with a classifier concerning a classification action particular to an employee's job, the employee has the right to Union representation.

In its exception the Agency contends that the award is deficient as contrary to the Statute and as in excess of the Arbitrator's authority. Specifically, the Agency maintains that the Arbitrator's ultimate determination in effect was that the Union had a right to be given an opportunity to be represented pursuant to section 7114(a)(2)(B) of the Statute /1/ at a classification desk audit and contends that such a determination is inconsistent with the provisions of section 7114 and is therefore in excess of the Arbitrator's authority. In support of the exception, the Agency cites American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 15 FLRA No. 158(1984) (proposal 1) for the proposition that although the matter of union representation at a desk audit is within the duty to bargain, such representation is not compelled by the Statute. The Agency further argues that section 7114(a)(2)(B) by its own terms does not apply to a nondisciplinary classification desk audit. Accordingly, the Agency claims that the award must be set aside.

With respect to the supporting arguments of the Agency in this exception, the Authority agrees that section 7114(a)(2)(B) by its own terms does not apply to a nondisciplinary classification desk audit and that a union is not entitled under that provision to be represented at such a desk audit. However, the Authority concludes that the exception provides no basis for finding the award of the Arbitrator deficient. The award resolved the negotiation impasse by providing that Article 9, Section 4 of the parties' collective bargaining agreement shall be as proposed by the Agency, but with a right to union representation during a desk audit should the employee reasonably believe unfavorable action may occur. As recognized by the Agency in its citation to AFGE Local 32, a provision in a collective bargaining agreement for a right to union representation at a desk audit is in no manner contrary to the Statute. Thus, the entire focus of the Agency's exception is on the deficiency of the reasoning and conclusions of the Arbitrator stated in his discussion accompanying the award rather than the deficiency of the award. In this respect the Authority uniformly has held that disagreement with an arbitrator's reasoning and conclusions provides no basis for finding an award deficient. See Internal Revenue Service, Jacksonville District and National Treasury Employees Union, Chapter 93, 15 FLRA No. 93(1984) (wherein the Authority concluded that the Union's exceptions constituted nothing more than disagreement with the reasoning and conclusions of the arbitrator because the exceptions failed to establish that the arbitrator's reference to subjective considerations under section 7114(a)(2)(B) substantiated that the denial of the grievances was contrary to the Statute). Furthermore, the Authority has specifically held that it is the award rather than the specific reasoning and conclusions employed by the arbitrator that is subject to review under the Statute. American Federation of Government Employees, AFL-CIO, Local 987 and Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 3 FLRA 549(1980). Thus, in terms of this case, the Agency has failed to establish that the award directing that Article 9, Section 4 of the parties' collective bargaining agreement shall be as ordered by the Arbitrator is contrary to the Statute or in excess of the Arbitrator's authority. Accordingly, the exception is denied.

Issued, Washington, D.C., September 18, 1985 (s) HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman (s) WILLIAM J. MCGINNIS JR. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ Section 7114(a)(2)(B) provides:

(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--

(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if--

(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(ii) the employee requests representation.