U.S. International Trade Commission, Washington, D.C. and American Federation of Government Employees, Local 2211 (Authority decision, November 29, 1983)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator found that the International Trade Commission did not violate its collective bargaining agreement by declining to promote an employee to GS-14. AFGE Local 2211 challenged the award, arguing that the arbitrator should have used Title VII proof rules, that the award was unclear, and that the arbitrator evaluated evidence selectively. The Authority held that the arbitrator had decided a contract claim and did not have to apply the cited Title VII rules. It found no defect in the award's statement or evaluation of the evidence and denied the union's exceptions.

Decision snapshot

• Authority: Exceptions to an arbitration award under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; the award rejecting the promotion grievance stands.
• Key point: Disagreement with an arbitrator's weighing of evidence does not establish that an award is deficient.

Full text (FLRA public release)

[ v13 p440 ]

13:0440(78)AR

The decision of the Authority follows:

13 FLRA No. 78

U.S. INTERNATIONAL TRADE
COMMISSION, WASHINGTON, D.C.
Agency

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2211, AFL-CIO
Union

Case No. O-AR-332

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Harold D. Jones, Jr. filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. /1/ The Agency filed an opposition.

The parties submitted to the Arbitrator the issue of whether the Agency violated the parties' collective bargaining agreement by not promoting the grievant to GS-14. On the basis of the evidence presented, the Arbitrator as his award determined that the Agency had not violated the agreement by not promoting the grievant to GS-14.

In its first exception the Union essentially maintains that Federal law pertaining to the order and nature of proof in actions under Title VII of the Civil Rights Act of 1964 governed the resolution of the grievance and that the Arbitrator failed to properly apply such law. However, as noted, the specific issue submitted to and resolved by the Arbitrator was whether the Agency had violated the parties' collective bargaining agreement, as claimed by the Union, and in resolving that issue the Arbitrator was not required to apply Federal law pertaining to the proper order and nature of proof in actions filed in Federal courts under Title VII of the Civil Rights Act. See Department of Defense Dependents Schools, Europe and Overseas Education Association, 4 FLRA 412, 414 (1980). Accordingly, this exception provides no basis for finding the award deficient.

In its second exception the Union contends that the award is incomplete, ambiguous, and contradictory. However, no basis is provided for finding incomplete, ambiguous, or contradictory the Arbitrator's award expressly determining that the Agency had not violated the parties' agreement. See, e.g., Delaware National Guard, Wilmington, Delaware and Association of Civilian Technicians, Delaware Chapter, 5 FLRA No. 9 (1981).

In its third exception the Union contends that "the Arbitrator considered the evidence presented in a superficial or selective manner and failed to specify any particular item in the body of direct evidence or the rebuttal (or the absence of direct evidence) on which his conclusion can be based." However, this contention constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony, and it is well established that such disagreement provides no basis for finding the award deficient. E.g., Social Security Administration and American Federation of Government Employees, SSA, Local 1923, AFL-CIO, 7 FLRA No. 82 (1982). Similarly, because an arbitrator need not specify particular items of evidence on which the award is based, the Union's contention in this respect also provides no basis for finding the award deficient. See American Federation of Government Employees, Local 2327 and Department of Health, Education, and Welfare, Social Security Administration, 5 FLRA No. 23 (1981), at 4 and private sector cases cited therein.

Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., November 29, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ After the time period for filing exceptions had expired, the Union filed a supplemental submission essentially contending that evidence that has come into existence only since the arbitration hearing justifies reversing the award and requesting consideration of this evidence in resolving the exceptions to the award. In this respect the Authority has expressly held that the existence of such new evidence provides no basis for finding the award deficient under the Statute. Veterans Administration Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA No. 59 (1981), at 9. Consequently, and apart from other considerations, the Authority's decision in this case has been reached without consideration of the Union's supplemental submission.