U.S. Department of Labor (Agency) and National Council of Field Labor Locals, Local 644, American Federation of Government Employees (Union) (Authority decision, July 30, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders 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

Four Labor Department claims examiners grieved the denial of recommended career ladder promotions. The arbitrator held that the agreement did not make the dispute arbitrable. The union called that ruling a nonfact, but the Authority found it rested on contract interpretation rather than an erroneous central fact. It sustained the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; nonarbitrability award upheld.
• Key point: A dispute over contract interpretation was not a nonfact that invalidated the award.

Full text (FLRA public release)

[ v06 p345 ]

06:0345(61)AR

The decision of the Authority follows:

6 FLRA No. 61

U.S. DEPARTMENT OF LABOR
Agency

and

NATIONAL COUNCIL OF
FIELD LABOR LOCALS,
LOCAL 644, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES
Union

Case No. O-AR-67

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR JOHN W. MAY FILED BY THE UNION UNDER SECTION 7122(A) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)).

ACCORDING TO THE RECORD BEFORE THE AUTHORITY, THIS MATTER AROSE WHEN
THE AGENCY DENIED CAREER LADDER PROMOTIONS TO FOUR CLAIMS EXAMINERS IN
CAREER LADDER POSITIONS. THEIR PROMOTIONS TO THE NEXT GRADE LEVEL IN
THE CAREER LADDER HAD BEEN RECOMMENDED, BUT THE APPOINTING OFFICIAL
DECLINED TO APPROVE THE PROMOTIONS. THE FOUR EMPLOYEES FILED A
GRIEVANCE CLAIMING THAT THEIR FAILURE TO BE PROMOTED WAS IN VIOLATION OF
THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. THE AGENCY RESPONDED THAT
THE GRIEVANCE WAS NOT GRIEVABLE AND ARBITRABLE, AND ULTIMATELY THE
MATTER WAS SUBMITTED TO ARBITRATION FOR RESOLUTION.

THE ARBITRATOR FIRST ADDRESSED THE ISSUE OF ARBITRABILITY. HE
DETERMINED THAT THE GRIEVANCE WAS NOT ARBITRABLE BECAUSE THE ISSUE OF
THE FAILURE TO PROMOTE THE GRIEVANTS IN THE CAREER LADDER WAS NOT A
MATTER THAT UNDER THE AGREEMENT WAS SUBJECT TO ARBITRATION.
CONSEQUENTLY, IN HIS AWARD, HE DENIED THE GRIEVANCE AS LACKING IN
ARBITRABILITY.

THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
/2/ THE AGENCY FILED AN OPPOSITION.

IN ITS EXCEPTION, THE UNION CONTENDS THAT THE AWARD IS BASED ON A
NONFACT. SPECIFICALLY, THE UNION MAINTAINS THAT THE GRIEVANCE WAS
ARBITRABLE AND THE ARBITRATOR'S AWARD FINDING THAT THE GRIEVANCE WAS NOT
SUBJECT TO ARBITRATION UNDER THE AGREEMENT IS CONSEQUENTLY BASED ON A
NONFACT.

PURSUANT TO SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY WILL
FIND AN ARBITRATION AWARD DEFICIENT WHEN IT IS DEMONSTRATED THAT THE
CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY ERRONEOUS AND IN EFFECT
IS A GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE
BEEN REACHED. IN THIS CASE, HOWEVER, THE UNION HAS FAILED TO
DEMONSTRATE THAT THE AWARD IS DEFICIENT ON THIS GROUND. AS HAS BEEN
NOTED, THE ARBITRATOR DENIED THE GRIEVANCE AS NOT SUBJECT TO ARBITRATION
UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. THUS, IT WAS THE
ARBITRATOR'S INTERPRETATION AND APPLICATION OF THAT AGREEMENT WHICH
PROVIDED THE BASIS FOR THE ARBITRATOR'S AWARD RATHER THAN A "NONFACT" AS
ASSERTED BY THE UNION. SUCH ASSERTION CONSTITUTES NOTHING MORE THAN
DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT, AND THEREFORE THE UNION'S
EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5
U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
REGULATIONS. E.G., RED RIVER ARMY DEPOT AND NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R14-52, 3 FLRA NO. 32(1980).

FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.

ISSUED, WASHINGTON, D.C., JULY 30, 1981

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS:

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/2/ ALTHOUGH THE UNION'S EXCEPTION WAS FILED AT THE TIME THE
AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
RULES AND REGULATIONS, 5 CFR PART 2425(1980), ARE IDENTICAL TO THE
INTERIM REGULATIONS.