Arbitrator went too far, says Federal Labor Relations Authority

FLRA SHIFTS POSITIONS ON WHETHER ARBITRATORS’ PROCEDURAL ARBITRABILITY RULINGS ARE SUBJECT TO THE “ESSENCE TEST” AND WHETHER AGENCY CAN WAIVE CONTRACTUAL TIME LIMITS 

In a recent precedential ruling (SBA v. AFGE, 70 FLRA No. 107 (2018)), the Federal Labor Relations Authority (“FLRA”) held that parties may directly challenge arbitrators’ procedural arbitrability determinations on essence grounds.  Altering its prior policy of refusing to set aside arbitration awards on such grounds, the FLRA upheld SBA’s appeal on essence grounds that an arbitrator failed to enforce a contractual time-limit for filing grievances.  Furthermore, the FLRA set aside the arbitrator’s holdings that: 1) the SBA waived its time-limit argument by failing to raise the same during grievance handling; and 2) its past practice of accepting untimely grievances had modified the parties’ clear contractual time-limit language.  The FLRA emphasized that “… arbitrators may not modify the plain and unambiguous provisions of an agreement based on parties’ past practices.”