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

 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.