General Services Administration, Region 8 and AFGE Council 236 (Authority decision, August 22, 1983)

Final FLRA decision. This is an Authority order 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 does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator ruled that a grievance over a three day suspension could not proceed because the union missed a response deadline in the parties’ agreement. AFGE Council 236 argued that the arbitrator framed the issue incorrectly, relied on incorrect facts, and denied due process. The Authority found no basis for setting aside the award. It denied the exceptions, leaving the procedural arbitrability ruling in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; award finding grievance untimely stands.
• Key point: Disagreement with an arbitrator’s procedural arbitrability finding did not make the award deficient.

Full text (FLRA public release)

[ v12 p614 ]

12:0614(115)AR

The decision of the Authority follows:

12 FLRA No. 115

GENERAL SERVICES ADMINISTRATION
REGION 8
(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236, AFL-CIO
(Union)

Case No. O-AR-547

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator George E. Bardwell filed by the Union pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The dispute in this matter concerns the suspension of the grievant for three days for the alleged use of intoxicants on Government premises. The Arbitrator described the issue as whether the suspension was arbitrable under the parties' current national and local collective bargaining agreements. The Arbitrator found, in pertinent part, that by failing to timely respond to the Agency's notice of proposed suspension, the Union had forfeited the right to utilize the negotiated grievance machinery and grieve the suspension action. Accordingly, as his award, the Arbitrator determined the matter was not arbitrable because of procedural untimeliness.

In its exceptions, the Union contends in effect that the Arbitrator (1) exceeded his authority by framing the issue the way he did; (2) erred in his pertinent finding that the Union was time barred from utilizing the negotiated grievance machinery because the Agency had not contested the untimely response to the proposed suspension; and (3) ignored due process principles by drawing his conclusion from "nonfacts" to which the Union had not had an opportunity to respond.

Upon careful consideration of the entire record before the Authority, including the contentions of the parties, the Authority concludes that the Union has failed to establish that the award is deficient. Thus, as to (1), the Union has failed to establish that there was a submission agreement or stipulation of the issues which would have precluded the Arbitrator's ruling on the procedural aspects of the grievance. The Union's first exception therefore constitutes nothing more than disagreement with the Arbitrator's finding and conclusions regarding compliance with the procedural requirements of the parties' collective bargaining agreements. It is well-established that disagreement with an arbitrator's determination with respect to the procedural arbitrability of a grievance does not provide a basis for finding an award deficient. E.g., Headquarters, 101st Airborne Division, U.S. Army, Fort Campbell, Kentucky and Local 2022, American Federation of Government Employees, 11 FLRA No. 1 (1983).

With regard to (2) and (3), the Union's contentions that the Arbitrator erred in his pertinent finding and based his award on "nonfacts," such arguments merely constitute disagreement with the Arbitrator's findings and conclusions. Such disagreement does not provide a basis for finding the award deficient. See, Supervisor of Shipbuilding, Conversion and Repair, United States Navy and Local R4-2, National Association of Government Employees, 5 FLRA No. 29 (1981).

Accordingly, the Union's exceptions are denied. Issued Washington, D.C., August 22, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY