U.S. Department of Labor, OIPA and American Federation of Government Employees, Local 12 (Authority decision, May 28, 1987)

Final FLRA decision. On reconsideration, the Authority addresses and denies the union’s previously overlooked arbitration exceptions. 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

The Department of Labor reduced three audiovisual specialist positions and created a new higher-graded position. An arbitrator upheld the reduction and selection, though he found a breach of the labor agreement’s placement committee requirement. The Authority had earlier modified the arbitrator’s backpay remedy after considering the agency’s exceptions, but inadvertently omitted the union’s. On reconsideration, it rejected the union’s claims of discrimination and improper reduction procedures because they did not show a legal defect in the award.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); earlier backpay ruling under § 5596.
• Outcome: Union’s exceptions denied; earlier modification of backpay stands.
• Key point: The union’s disagreement with factual findings about the reduction and selection did not establish a legal defect.

Full text (FLRA public release)

[ v27 p109 ]

27:0109(20)AR

The decision of the Authority follows:

27 FLRA No. 20

U.S. DEPARTMENT OF LABOR, OIPA
Agency

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 12
Union

Case No. O-AR-1225

DECISION ON RECONSIDERATION

I. Statement of the Case

This case has been reopened by the Authority basead on the Union's motion seeking reconsideration of our decision in U.S. Department of Labor, OIPA and American Federation of Government Employees, AFL-CIO, Local 12, 26 FLRA No. 44 (March 23, 1987). In that decision, we addressed the Agency's exceptions to the award of Arbitrator Harry M. Leet. However, we did not address the Union's exceptions to the award, which had been docketed under another case number and inadvertently had not been considered in connection with the Agency's exceptions. This decision addresses the Union's exceptions.

II. Background and Arbitrator's Award

As stated in our decision of March 23, 1987, the grievance in this case arose when, as the result of a moratorium on the production of audiovisual materials and a reduction in its budget, the Agency determined that a reduction in force (RIF) of three GS-11 audiovisual specialists was necessary. At the same time, the Agency created a new GS-12 audiovisual specialist position to perform the duties remaining and other duties relating to new work. The three employees affected by the RIF were advised of the new position and were urged to apply. All were found to be qualified for it. The employee with the least seniority among the three candidates was selected. As a result of the RIF, one of the other employees who was not selected was downgraded from GS-11 to GS-4 position. That employee grieved, and the matter was submitted to arbitration.

The Arbitrator found that (1) the RIF was properly conducted, (2) the GS-12 position was properly created and (3) there was justification for the selection of the least senior employee. The Arbitrator also found that the Agency had breached the parties' collective bargaining agreement by not establishing a Placement Committee at the time of the RIF as required by the agreement. As his award, the Arbitrator ordered the Agency to pay the grievant an amount equal to one month's difference between the regular rate of pay for the GS-4 job which the grievant now holds and the rate of pay for the GS-12 audiovisual specialist position the grievant claimed he should have received.

The Agency excepted only to that portion of the award which awarded backpay to the grievant. In resolving the Agency's exception, we determined that the award was contrary to the Back Pay Act, 5 U.S.C. Section 5596, and we modified the award accordingly.

III. Union's Exceptions

The Union contends that the Arbitrator erred in his application of federal law and regulations pertaining to racial discrimination claims. Accouding to the Union, the Arbitrator should have found that (1) the Agency improperly discriminated against the grievant on the basis of race in not selecting him for the new GS-12 position; and (2) the creation and filling of the new GS-12 vacancy simultaneously with the RIF improperly circumvented contractual and regulatory RIF standards and safeguards for the protection of employees. The Union requests that the Arbitrator's decision be reversed, and that the grievant be assigned to the vacant audiovisual specialist position with an award of backpay.

IV. Analysis and Conclusions

As noted previously, the Arbitrator expressly determined that (1) the RIF was properly conducted; (2) the GS-12 position was properly created; and (3) there was justification for the selection of the least senior employee. The Union's exceptions fail to demonstrate that the award is contrary to any law, rule, or regulation. Rather, the exceptions constitute nothing more than disaagreement with the Arbitrator's findings of fact, evaluation of evidence and testimony, and reasoning and conclusions. Consequently, they provide no basis for finding the award deficient. See, for example, U.S. Air Force, 1947 Support Group and AFGE-GAIU, Council of Headquarters, USAF Locals, AFL-CIO, 20 FLRA 444 (1985).

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Federal Service Labor-Management Relations Statute; that is, that the award is contrary to any law, rule or regulation, or that the award is deficient on other grounds similar to those applied by federal courts in private sector labor-management relations.

V. Decision

Accordingly, the Union's exceptions are denied.

Issued, Washington, D.C., May 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY