53:0187(25)AR - - Agency for International Development and AFGE Local 1534 - - 1997 FLRAdec AR - - v53 p187

[ v53 p187 ]
The decision of the Authority follows:

53 FLRA No. 25








LOCAL 1534





July 9, 1997


Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

This matter is before the Authority on exceptions to an award of Arbitrator Andree Y. McKissick 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.(1) The Union filed an opposition to the Agency's exceptions.(2)

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. The Agency excepts on two private sector grounds, contending that the award fails to draw its essence from the parties' collective bargaining agreement and that the award is based on a nonfact. Upon careful consideration of the entire record in this case, and applying well-settled precedent, 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).

Accordingly, the Agency's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. The Agency also requested a stay of the Arbitrator's award. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). See American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 46 FLRA 1191, 1191 n.1 (1993). Therefore, we deny the Agency's request.

2. The Union requested that the Authority strike the documents submitted as Tabs Q and S in the Agency's exceptions because the documents were not part of the original hearing exhibits. Section 2429.5 of the Authority's Regulations provides as follows:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the Regional Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority may, however, take official notice of such matters as would be proper.

The document submitted as Tab S was in existence at the time of the arbitration hearing but was not presented to the Arbitrator. Therefore, consideration of the document is precluded by section 2429.5. See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1565-66 (1992). Although the document submitted as Tab Q did not exist at the time of the arbitration hearing, there is no reason asserted or apparent why the information contained in the document could not have been presented to the Arbitrator. This case is distinguishable from the situations in National Treasury Employees Union, Chapter 45 and U.S. Department of the Treasury, Internal Revenue Service, Tulsa, Oklahoma, 52 FLRA 1458, 1460-61 (1997), and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857, 50 FLRA 96, 99 (1995), where the Authority considered documents created after the date of the arbitration proceedings that sought to reflect what transpired at expedited arbitration proceedings. The Agency has not demonstrated that the document should be considered by the Authority. Therefore, we grant the Union's motion to strike the Agency's exhibits at Tabs Q and S.