Binding arbitration is one of the most significant requirements of the Federal Service Labor Management Relations Statute (Statute). All federal sector collective bargaining agreements must have binding arbitration. It is mandatory and not the subject of bargaining which can be the case outside the federal sector.
Because of the requirement for binding arbitration, Congress created one of the most significant appeal processes found in the Statute. It is the right of both union and management to file exceptions to a decision of an arbitrator, and both sides generously avail themselves of this right.
Filing administrative exceptions to an arbitration award is a unique process. It does not exist in the private sector, where the parties must file an appeal in a court proceeding. In the federal sector, the parties do not have to pay the expenses of a court filing but instead can use a cost-free process to appeal an arbitration award by filing an exception to the award with the Federal Labor Relations Authority (FLRA).
The FLRA has established grounds on which an exception must be based. (See Section 2425 of the Rules and Regulations of the FLRA).
Grounds for Exceptions:
- Bias on the part of the arbitrator
- Arbitrator exceeded their authority
- Arbitrator failed to provide a fair hearing
- Award is deficient as contrary to law or regulation
- Award is based on a non-fact
- Award fails to draw its essence from the parties’ collective bargaining agreement
Let us look at each one of them:
Bias on the part of the Arbitrator
To prove bias, you must establish:
- Award was procured by improper means
- There was partiality or corruption on part of arbitrator
- Arbitrator engaged in misconduct that prejudiced rights of the party
See U.S. Department of Veterans Affairs, Medical Center, North Chicago, IL,
52 FLRA 387, 398
Arbitrator Exceeded
- An award will be found deficient if it conflicts with a law, rule, or regulation
- The Authority reviews questions of law raised by an award and a party’s exceptions de novo
- The Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law
See NTEU Chapter 24, 50 FLRA 330, 332 and NFFE, Local 1437, 53 FLRA 1703
Award is Based on a Non-Fact
To establish an award is based on non-fact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous but for which the arbitrator would have reached a different result.
See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado, 48 FLRA 589 (1993)
Award Fails to Draw Its Essence from the Parties’ Collective Bargaining Agreement
Award is deficient when appealing party establishes that the award:
- Cannot in any rational way be derived from the agreement
- Is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator
- Does not represent a plausible interpretation of the agreement
- Evidences a manifest disregard for the agreement
See U.S. Department of Labor (OSHA), 34 FLRA 573
These are basically the same grounds that can be argued in a private sector court proceeding seeking to overturn an arbitrator’s award. They have been adopted to be used in an administrative proceeding. A decision by the FLRA on an exception to an arbitration award is final and binding.
