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57 FLRA No. 1
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1698
UNITED STATES DEPARTMENT OF THE NAVY
NAVAL INVENTORY CONTROL POINT
March 12, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members.
Decision by Member Pope for the Authority.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Gladys Gershenfeld filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.
The Arbitrator found that the grievant's request for backpay was integrally related to the classification of the grievant's position and did not involve a reduction of pay. As a result, the Arbitrator concluded that the issue was not arbitrable under the terms of the parties' collective bargaining agreement.
For the following reasons, we find that the Union has failed to show that the award is deficient under § 7122 of the Statute. Therefore, we dismiss the exception.
II. Background and Arbitration Award
The Union filed a grievance alleging that the grievant was entitled to backpay for a period in which she performed the duties of a GS-07 position, but was paid at the GS-06 rate. The Agency denied the grievance, stating that the issue had been fully and finally settled in a previous grievance. The parties submitted the grievance to arbitration. The Arbitrator found that the issues grieved were "integrally related to," and thus "concern[ed]," the classification of the grievant's position and therefore were not arbitrable under the Article XXI, Section 3 of the parties' agreement. [n1] See Award at 5.
III. Positions of the Parties
A. Union's Exception
The Union contends that the Arbitrator's award is deficient because it is contrary to law. Specifically, the Union argues that the award is contrary to 5 U.S.C. § 5301. [n2]
The Union also argues that the grievance does not concern the classification of the grievant's position under § 7121(c)(5) of the Statute.
B. Agency's Opposition
Citing 5 C.F.R. § 2425.2, the Agency asserts that the Union's exception is procedurally deficient because it fails to provide the Arbitrator's address and "evidence of rulings bearing on the issues before the Authority." Opposition at 1. The Agency further contends that the Union fails to provide "an analysis of how the award conflicts with any law" or "any documents or authority to substantiate its position or provide a basis for evaluation by the Authority." Id. at 2. Finally, the Agency asserts that the Authority should not address the Union's argument that the grievant is entitled to backpay because it involves the merits of the case, which were never addressed by the Arbitrator.
IV. Analysis and Conclusions
A. The Union's Exception Satisfies 5 C.F.R. § 2425.2(a)-(c) and (e).
An exception to an arbitrator's award must include the name and address of the arbitrator who issued the disputed award. 5 C.F.R. § 2425.2(e). The Union's submission to the Authority includes a copy of both the cover page from the Arbitrator's award and the envelope in which the award was served on the Union, each [ v57 p2 ] of which include the Arbitrator's name and address. The Union's exception thus satisfy the requirements established in 5 C.F.R. § 2425.2(e).
An exception also must "set forth in full" the following substantive information: "(a) A statement of the grounds on which review is requested; (b) Evidence or rulings bearing on the issues before the Authority; [and] (c) Arguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities." 5 C.F.R. § 2425.2(a)-(c). In its exception, the Union states that an arbitrator's award is deficient if it is contrary to law. The Union identifies 5 U.S.C. § 5301 and § 7121(c)(5) of the Statute as the legal authority in support of its contrary to law exception. This constitutes a sufficient ground and sufficient substantive information for the Authority to consider the merits of the Union's exception. See, e.g., Patent Office Prof'l Ass'n, 34 FLRA 883, 886 (1990).
B. 5 C.F.R. § 2429.5 Bars the Union's Exception.
Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 985, 987 (2000). Nothing in the record indicates that the issues of whether the grievance concerned pay fixing under 5 U.S.C. § 5301 or classification under § 7121(c) of the Statute were raised at arbitration. In this regard, the Arbitrator addressed only issues concerning classification under the parties' agreement, and made no mention of the Statute or any other legal authority in her award. Award at 5. Accordingly, we will not consider the Union's exception. See Federal Aviation Admin., Seatac Airport, Seattle, Wash., 52 FLRA 701, 706 n.10 (1996).
The Union's exception is dismissed.
Footnote # 1 for 57 FLRA No. 1
Article XXI, Section 3, subsection c.(2)(e) of the parties' collective bargaining agreement provides, in pertinent part, that the agreement's negotiated grievance procedure does not apply to complaints concerning "the classification of any position which does not result in the reduction in grade or pay of any employee." Award at 4.
Footnote # 2 for 57 FLRA No. 1
The Union mistakenly cites the Code of Federal Regulations at 5 C.F.R. § 5301. However, the wording discussed by the Union is found in 5 U.S.C. § 5301, which provides in pertinent part: "[i]t is the policy of Congress that Federal pay fixing for employees under the General Schedule be based on the principles that . . . there be equal pay for substantially equal work within each local pay area."