EEOC Houston and AFGE Local 3637 (Authority decision, September 15, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

An EEOC employee challenged a separation for alleged job abandonment. The arbitrator found the grievance excluded while a Merit Systems Protection Board appeal route existed, but said the parties could later ask him to hear the merits if the Board declined the appeal. EEOC argued that this exceeded the arbitrator’s authority. The Authority found he had only described a possible later joint request, not retained jurisdiction, and denied the exception.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Agency exception denied; arbitrability award upheld.
• Key point: A possible later joint submission to the arbitrator was not improper retained jurisdiction.

Full text (FLRA public release)

[ v10 p59 ]

10:0059(16)AR

The decision of the Authority follows:

10 FLRA No. 16

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, HOUSTON, TEXAS
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 3637, AFL-CIO,
HOUSTON, TEXAS
Union

Case No. O-AR-346

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR WILLARD E. BENNETT FILED BY THE AGENCY UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE UNION FILED
AN OPPOSITION.

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
CONCERNS THE SEPARATION OF THE GRIEVANT FOR ALLEGEDLY ABANDONING HER
POSITION. A GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO ARBITRATION
DISPUTING THE SEPARATION.

THE ARBITRATOR FOUND THAT THE GRIEVANCE PERTAINED TO A MATTER
APPEALABLE TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB) AND RULED THAT
AS A MATTER FOR WHICH AN APPEALS PROCEDURE EXISTED, THE GRIEVANCE WAS
EXCLUDED FROM COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE. HOWEVER,
HE ADDED THAT SHOULD MSPB NOT ACCEPT THE GRIEVANT'S APPEAL, THE
GRIEVANCE IN THIS CASE WOULD NOT BE ON A MATTER FOR WHICH AN APPEALS
PROCEDURE EXISTED AND CONSEQUENTLY WOULD BE SUBJECT TO GRIEVANCE AND
ARBITRATION UNDER THE PARTIES' AGREEMENT. THE ARBITRATOR THEREFORE
STATED THAT IN SUCH EVENT, AND IF THE PARTIES SO REQUESTED, HE WOULD
DECIDE THE MATTER ON THE MERITS.

IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS DEFICIENT
BECAUSE THE ARBITRATOR EXCEEDED HIS AUTHORITY. SPECIFICALLY, THE AGENCY
CLAIMS THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY ATTEMPTING TO
RETAIN JURISDICTION OVER A MATTER WHICH HE DETERMINED WAS NOT SUBJECT TO
THE GRIEVANCE PROCEDURE.

THE AGENCY'S EXCEPTION HOWEVER PROVIDES NO BASIS FOR FINDING THE
AWARD DEFICIENT. THE AGENCY HAS FAILED TO SUBSTANTIATE IN ANY MANNER
THAT THE ARBITRATOR ATTEMPTED TO RETAIN JURISDICTION OVER A MATTER WHICH
HE HAD DETERMINED WAS NOT SUBJECT TO THE GRIEVANCE PROCEDURE. CONTRARY
TO THE AGENCY'S ASSERTION, THE ARBITRATOR EXPRESSLY DETERMINED THAT IN
THE EVENT OF MSPB NOT ACCEPTING THE GRIEVANT'S APPEAL, THE GRIEVANCE IN
THIS CASE WOULD BE "SUBJECT TO GRIEVANCE AND ARBITRATION." LIKEWISE, THE
ARBITRATOR IN NO MANNER HAS ATTEMPTED TO RETAIN JURISDICTION. THE
ARBITRATOR HAS MERELY SUGGESTED IN THE EVENT OF MSPB NOT ACCEPTING THE
GRIEVANT'S APPEAL, AND THIS MATTER THEREBY BEING SUBJECT TO GRIEVANCE
AND ARBITRATION, THAT THE PARTIES CONSIDER REQUESTING THAT HE DECIDE THE
MATTER ON THE MERITS. IN SUCH CIRCUMSTANCES THERE WOULD BE NO RETENTION
OF JURISDICTION FROM THE ORIGINAL SUBMISSION. RATHER, THE ARBITRATOR'S
JURISDICTION TO DECIDE THIS MATTER ON THE MERITS IN THE EVENTUALITY OF
MSPB NOT ACCEPTING THE GRIEVANT'S APPEAL WOULD BE SOLELY PURSUANT TO
SUCH AN ENSUING MUTUAL REQUEST BY THE PARTIES. THUS, THE AGENCY'S
EXCEPTION FAILS TO ESTABLISH THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY
AND IT IS CONSEQUENTLY DENIED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY