41:0303(32)AR - - Air Force, Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1991 FLRAdec AR - - v41 p303
[ v41 p303 ]
The decision of the Authority follows:
41 FLRA No. 32
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Julius Rezler 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 did not file an opposition to the Union's exception.
The Arbitrator found that a grievance requesting that a promotion be made retroactive with backpay was not arbitrable. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
In 1986, the grievant filed a grievance contending that he should have been promoted from WG-7 to WG-9 upon completion of a training program. The grievance was submitted to arbitration and was denied by an arbitrator in 1988. In February 1989, the grievant was promoted to WG-9.
After becoming aware that another employee, who had filed a similar promotion grievance, had been granted a promotion with backpay by an arbitrator, the grievant filed a second grievance requesting that his WG-9 promotion be made retroactive, with backpay, to the date he completed the training program. The second grievance was submitted to arbitration on, as relevant here, the following issue:
Is the grievance . . . arbitrable?
Award at 2.
Before the Arbitrator the Agency argued that "[the] case [was] not arbitrable on its merits because its core issue was already decided in a previous arbitration case in favor of the [Agency]." Id. at 4. The Union contended that the issues in the two grievances were different. The Union argued that the first grievance involved a promotion, and the second involved backpay.
The Arbitrator stated that he would examine "the causes of action, the issues, the contract provision at bar, the remedies, and the arguments existing in the two grievances filed by [g]rievant and presented during the subsequent grievance procedures" in order to determine whether "to invoke the concept of res judicata in the instant case." Id. at 5. The Arbitrator concluded that as "the same parties, the same grievant, the same issue, the interpretation of the same contract provision were involved in both cases and that the issue [in the second grievance] was decided by [the other arbitrator] in a previous final and binding award, this case constitutes a res judicata . . . ." Id. at 6. The Arbitrator noted that the Union had requested "the remedy of promotion and backpay" in the first grievance. Id. Accordingly, the Arbitrator determined that the grievance was not arbitrable.
III. The Union's Exception
The Union argues that the award is deficient because the Arbitrator exceeded his authority. First, the Union claims that as prior arbitration awards are not binding in subsequent proceedings, "res judicata cannot apply[.]" Exception at 2. Second, the Union argues that although the two grievances involved the same parties, they involved "two completely separate issues . . . ." Id. at 3. According to the Union, "back pay was not an issue in the [first] grievance, nor was the promotion at issue in the [instant] grievance." Id.
IV. Analysis and Conclusions
An arbitrator exceeds his or her authority when he or she issues an affirmative order that exceeds the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See, for example, U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 142-43 (1990). The Union makes no demonstration that the Arbitrator's award relates to matters that were not submitted to arbitration or encompasses persons who were not included in the grievance. Accordingly, the Union has not demonstrated that the Arbitrator exceeded his authority.
Moreover, the Union has not demonstrated that the Arbitrator erred in concluding that the second grievance was precluded by the first. The Union's reliance, in this regard, on Authority decisions holding that arbitration awards are not precedential is misplaced. As the Union notes, the Authority has held repeatedly that awards are not deficient solely on the basis that they conflict with previous awards. For example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 38 FLRA 369, 383 (1990). It does not follow, however, that an arbitrator errs in finding that a subsequent grievance is precluded when it involves the same parties, grievant, and issues as a previous grievance. See F. Elkouri and E. Elkouri, How Arbitration Works 422 n.35 (4th ed. 1985) ("The issuance of an arbitration award generally bars any subsequent court or arbitration action on the merits of the same event."); O. Fairweather, Practice and Procedure in Labor Arbitration 103 (3d ed. 1991) ("When the grievance has been settled, arbitrators hold that the second grievance is not arbitrable where the facts are the same as in the prior award.")
The Union has not demonstrated that the Arbitrator exceeded his authority or that the award is deficient on any ground set forth in secti