U.S. Department of Housing and Urban Development and American Federation of Government Employees (Authority decision, May 6, 1983)

Final FLRA decision. The Authority denied exceptions to an arbitration award under 5 U.S.C. § 7122. Judicial review of an arbitration order is generally excluded by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice under § 7118. This decision does not address an unfair labor practice.

Plain-English summary

AFGE grieved the competitive levels HUD planned to use in a reduction in force. An arbitrator ruled that the parties' agreement excluded matters covered by a statutory appeal procedure, including this dispute, from their grievance process. The union argued that it could grieve to protect its own interests even if employees had appeal rights. The Authority found that the arbitrator had interpreted the agreed exclusion and denied the exceptions, leaving the grievance nonarbitrable.

Decision snapshot

• Authority: Arbitration exception review under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; nonarbitrability award upheld.
• Key point: The negotiated grievance exclusion covered all matters with a statutory appeal route.

Full text (FLRA public release)

[ v12 p41 ]

12:0041(11)AR

The decision of the Authority follows:

12 FLRA No. 11

U.S. DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT
Agency

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO
Union

Case No. O-AR-508

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Joseph M. Sharnoff 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. The Agency filed an opposition.

The parties submitted to the Arbitrator the issue of the arbitrability of the Union's grievance concerning the competitive levels established by the Agency for a proposed reduction-in-force (RIF). The Arbitrator noted that the parties' agreement specifically excludes from the scope of the grievance procedure "any and all matters for which a statutory appeals procedure exists." The Arbitrator found that one such matter was the propriety of competitive levels for a RIF because individual employees with appeal rights to the Merit Systems Protection Board (MSPB) could contest that matter in the context of an appeal to MSPB from any final RIF action by the Agency. Noting that there was no dispute that under the parties' agreement employees were accordingly precluded from filing a grievance protesting competitive levels the Arbitrator identified the essence of the parties' dispute in this case as whether the Union was likewise precluded from filing such a grievance to further its institutional interests. Emphasizing that the agreement excludes "any and all matters" in this regard, the Arbitrator determined that the Union could not grieve competitive levels. Accordingly, as his award, the Arbitrator decided that the grievance was not arbitrable.

In its exceptions, the Union contends that the award is contrary to the definition of grievance in section 7103(a)(9) of the Statute and that the Arbitrator exceeded his authority. However, the Authority has held that the scope of the negotiated grievance procedure is a mandatory subject for collective bargaining under the Statute, Vermont Air National Guard, Burlington, Vermont, 9 FLRA No. 92 (1982), and, as noted, the Arbitrator expressly determined that the Union's grievance was excluded by the parties from the scope of their grievance procedure. Thus, the Union's exceptions constitute nothing more than disagreement with the Arbitrator's interpretation and application of the agreement and do not provide a basis for finding the award deficient. See Social Security Administration, Great Lakes Program Service Center and American Federation of Government Employees, Local 1395, 9 FLRA No. 129 (1982); San Antonio Air Logistics Center, Kelly Air Force Case, San Antonio, Texas and American Federation of Government Employees, AFL-CIO, Local 1617, 9 FLRA No. 44 (1982). Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., May 6, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY