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U.S. Department of Defense, Defense Commissary Agency, Norfolk, Virginia and National Association of Government Employees, Local R4-45

[ v55 p168 ]

55 FLRA No. 28







January 29, 1999


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

      This matter is before the Authority on exceptions to an award of Arbitrator James J. Sherman filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      Under section 7122(a) of the Statute, an award is deficient if it is contrary to any law, rule, or regulation; or it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Upon careful consideration of the entire record in this case, the Authority concludes that the award is not deficient on any of the grounds raised in the exceptions and set forth in section 7122(a).

      In particular, we reject the Agency's reliance on Parker v. Department of the Interior, 4 MSPR 97 (1980). The Authority has repeatedly held that arbitrators are bound by the same substantive standards as the Merit Systems Protection Board (MSPB) only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. See American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 51 FLRA 1302, 1306 (1996). The actions taken by the Agency in this case are not covered under 5 U.S.C. § 4303 or 7512. Therefore, the Arbitrator was not bound to follow the same substantive standards that the MSPB follows. [n1] 

      Accordingly, the Agency's exceptions are denied.

Footnote # 1 for 55 FLRA No. 28

   Member Wasserman would also find that, to the extent the Agency's exception could be viewed as raising the application of 29 C.F.R. § 1960.46, the Arbitrator's findings are consistent with that regulation.