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50:0528(70)AR - - NFFE, Local 11 and Air Force, Fairchild AFB, WA - - 1995 FLRAdec AR - - v50 p528

[ v50 p528 ]
The decision of the Authority follows:

50 FLRA No. 70














June 21, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Kent J. Collings 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 filed an opposition to the Union's exception.

The Arbitrator sustained a grievance and directed the parties to share equally his fees and expenses.

We conclude that the Union's exception fails to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.

II. Arbitrator's Award

The Arbitrator sustained the grievance over the grievant's performance appraisal and directed the Agency to reevaluate his performance. In accordance with Article VIII, Section 4 of the parties' collective bargaining agreement,(*) the Arbitrator decided that there was no "losing party" and directed the parties to share equally his fees and expenses.

III. Exception

A. Union's Contentions

The Union contends that "the Arbitrator's decision to split the fees and expenses is contrary to . . . law, rule or regulation or [is deficient] on other grounds similar to those applied by Federal Courts in private sector labor-management relations." Exception at 2. The Union argues that under Article VIII, Section 4 of the collective bargaining agreement, the Arbitrator was instructed to specify a losing party to pay his fees and expenses. The Union maintains that the Agency was the losing party and must pay all fees and expenses.

B. Agency's Opposition

The Agency contends that the Union's "mere parroting" of the grounds set forth in section 7122(a) of the Statute cannot provide a basis for finding the award deficient. Opposition at 2. The Agency asserts that the Arbitrator was merely carrying out the express function of Article VIII, Section 4 of deciding whether there was a losing party.

IV. Analysis and Conclusions

We deny the Union's exception. The Union fails to specify any law, rule, or regulation with which the award conflicts and none is apparent. The Union also fails to specify any private sector ground for review under section 7122(a)(2) of the Statute. However, we construe the Union's claim that the Arbitrator failed to specify a losing party under the agreement as a claim that the award fails to draw its essence from the collective bargaining agreement. Article VIII, Section 4 provides that the arbitrator will specify a losing party to pay all fees and expenses unless the arbitrator decides that there is no losing party, in which event the fees and expenses are shared equally. In this case, the Arbitrator decided that there was no losing party. We conclude that the Union fails to establish that the Arbitrator's allocation of fees and expenses fails to draw its essence from the parties' agreement under relevant standards. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). See also U.S. Department of the Air Force, McGuire Air Force Base, New Jersey and American Federation of Government Employees, Local 1778, 48 FLRA 740, 742-43 (1993) (and cases cited in the decision).

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)

*/ Article VIII, Section 4 provides: "Fees and expenses shall be borne by the losing party. Accordingly, the arbitrator will be instructed to specify the losing party except if the arbitrator decides there is no losing party. In that event, the arbitrator's fees and expenses will be shared equally by the parties." Award at 4.