[ 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.