40:1254(111)AR - U.S. DEPARTMENT OF THE TREASURY, UNITED STATES CUSTOMS SERVICE and NTEU -- 1991 FLRAdec AR
[ v40 p1254 ]
The decision of the Authority follows:
40 FLRA NO. 111 U.S. DEPARTMENT OF THE TREASURY UNITED STATES CUSTOMS SERVICE (Agency) and NATIONAL TREASURY EMPLOYEES UNION (Union) 0-AR-2082 ORDER DISMISSING EXCEPTIONS May 31, 1991 The grievant, Harry McKendry, filed exceptions to the award of Arbitrator Jerome G. Greene in the above-captioned case. */ On May 2, 1991, the Authority directed Mr. McKendry to show cause why his exceptions should not be dismissed because he was not properly authorized to file exceptions. Mr. McKendry filed a timely response to the Authority's Order. For the reasons set out below, Mr. McKendry's exceptions must be dismissed. The Authority's Regulations provide that "(e)ither party" to an arbitration proceeding "may file an exception to an arbitrator's award rendered pursuant to the arbitration." 5 C.F.R. 2425.1(a). A "party" in the context of an arbitration proceeding is defined as "any person ... who participated as a party ... in a matter where the award of an arbitrator was issued...." 5 C.F.R. 2421.11(a)(4)(ii). The Arbitrator's award indicates that the parties to the arbitration proceeding were the Agency, represented by Catherine Iaconic, and the Union, represented by Steven P. Flig. On April 15, 1991, the Union's National Counsel informed the Authority in writing that, "NTEU did not file exceptions to the award of Arbitrator Greene. Although Mr. McKendry was authorized to file an appeal by Chapter 137, there is nothing in the record to show that Chapter 137 was a "party" in the context of the arbitration proceeding. The Authority's May 2, 1991 Order to Show Cause directed the grievant to provide evidence that: (1) Chapter 137 participated as a "party" in the arbitration proceeding; or (2) Chapter 137 was granted the authority by the Union to authorize the grievant to file the subject exceptions; or (3) the Union directly authorized the grievant to file the exceptions presently before the Authority. In his response to the Authority's Order, Mr. McKendry enclosed: (1) a bill from the Arbitrator dated March 7, 1991, addressed to Catherine Iaconic for the Agency, and Steven P. Flig for the Union with a joint total of $1,500.00; and (2) a bill from the Union dated March 14, 1991, for Chapter 137 to pay $375.00 (one half of the Union's share of the joint total owed to the Arbitrator). The grievant asserts that, "The sharing of the financial costs equally by Chapter 137 and the 'National' clearly indicate a shared 'common-bond' interest strong enough to qualify the Chapter as a 'party' to the proceedings." The grievant argues further that, "Chapter 137 participated as a 'party' in the arbitration proceeding in that the initial response to the Agency's suspension proposal originated with Chapter 137, and laid the groundwork for the 'expedited arbitration.'" The grievant's arguments are insufficient and must be rejected. Chapter 137's financial contribution to the costs of the arbitration proceeding and its participation in laying the groundwork in preparation for an arbitration proceeding does not establish its participation as a "party" within the context of an arbitration proceeding. The right under the Authority's Regulations to file exceptions to an arbitrator's award is limited to "(e)ither party." 5 C.F.R. 2425.1(a). The Union's participation as a party is evidenced by its representative, Steven P. Flig, appearing at the hearing before the Arbitrator as the Union's representative of record. Additionally, the Union's statement to the Authority that it "did not file exceptions to the award of Arbitrator Greene" is not disputed by either the grievant or Chapter 137. In fact, the grievant acknowledges in his response the '"National's" decision to not further involve its attorney's in the appeal". Accordingly, as Mr. McKendry has failed to show that he was properly authorized to file exceptions in the above-captioned case, Mr. McKendry's exceptions are dismissed for lack of standing as a party to file exceptions in the above-captioned case. For the Authority. Alicia N. Columna Director, Case Control Office FOOTNOTES Footnote */ Mr. McKendry's exceptions included a March 21, 1991, authorization from Chapter 137 permitting Mr. McKendry to "represent an appeal" in the above-captioned case.