[ v56 p829 ]
56 FLRA No. 137
U.S. DEPARTMENT OF VETERANS AFFAIRS
NATIONAL ASSOCIATION OF
September 29, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph A. Harris 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. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by denying the grievant overtime compensation that had previously been approved. As a remedy, the Arbitrator ordered that the Agency pay the grievant for 2.5 hours of overtime, with interest. The Arbitrator also retained jurisdiction of the case for the purpose of addressing a request for attorneys fees.
For the reasons that follow, we find that the Agency has not established that the award is deficient. We accordingly deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant is a nurse who, at the time the instant proceeding arose, was employed in the Agency's nursing home unit. On April 8, 1998, the grievant was asked by a night shift charge nurse if she could work overtime after completing her regular 11:00 p.m. - 7:00 a.m. shift. The grievant responded affirmatively and subsequently began working overtime at 7:00 a.m. on the morning of April 9, 1998.
At 12:30 p.m., as the grievant was preparing for lunch, she was informed by a day shift charge nurse that her services were no longer required and that she could go home. When the grievant responded that she had previously been approved to work 8 hours of overtime, she was again told that her overtime was completed and that she should leave.
Prior to sending the grievant home, the Agency had asked two other nurses to work overtime. The first nurse, who was assigned to the 5:00 a.m. to 1:30 p.m. shift, was asked to work from 1:30 p.m to 3:30 p.m. The second nurse, who was assigned to the 3:30 p.m. to 12:00 a.m. shift, was contacted at home and asked to come in at 1:30 p.m.
A grievance was thereafter filed seeking overtime compensation for the remainder of the grievant's overtime shift. When the grievance was not resolved, it was submitted to arbitration on the following issue:
Whether the [Agency] violated the Master Agreement between the [p]arties when it failed to provide the [g]rievant with payment for 2.5 hours for overtime approved on April 8, 1998. If so, what will be the remedy?
Award at 4.
The hearing in this case was initially scheduled to be held on the Agency's premises. However, the Union requested that it be moved off-site. The Union explained that the President of NAGE R3-35 had been prohibited from accessing the Agency's premises and would not be permitted to attend the hearing if it was held on-site. The Union also submitted the bench decision in U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Coatesville, Pennsylvania, Case No. BN-CA-90660 (January 10, 2000) (Chaitovitz) (VA Coatesville) in support of its request.
The Agency argued that the hearing should not be moved. According to the Agency, section 3 of the parties' master agreement provides that "[a]rbitration hearings will be held during regular day shift duty hours at the facility where the grievance was filed." Award at 3. The Agency also indicated that it would not participate if the hearing was conducted off-site.
The Arbitrator noted that in VA Coatesville, which involved an identical situation, as well as the same parties, [ v56 p830 ] the Judge ordered the Agency to abide by the arbitrator's decision to participate in an off-site hearing. Based on that decision and the "extensive information" that the parties provided him, the Arbitrator ordered that the hearing be held at the Coatesville Memorial Community Center. Id. [n1] Thereafter, an ex parte hearing was conducted because the Agency refused to attend. [n2]
B. Arbitrator's Award
The Arbitrator concluded that the Agency violated Article 14 of the parties' master agreement "by sending the [g]rievant home before the end of her overtime shift and refusing to pay her for 2.5 hours of promised overtime." Id. at 10. [n3] In so concluding, the Arbitrator initially found that the Agency "followed the proper procedure for assigning overtime when it asked the [g]rievant, during her regular shift, to work overtime immediately following her shift." Award at 9. The Arbitrator further found that "[t]his is the agreed upon procedure when someone calls in to inform management that [she or he] is ill and cannot come to work." Id.
The Arbitrator next rejected the Agency's claim that it was not consistent with good nursing policy to ask the grievant to work eight hours of overtime. The Arbitrator found that although the parties' master agreement sought to minimize this practice, the Agency frequently followed it. In this connection, the Arbitrator observed that the relevant nursing schedule for the period April 5-11, 1998, included ten instances in which employees had been scheduled to work at least seven hours of overtime immediately before or after their regular shifts.
Finally, the Arbitrator rejected the Agency's claim that it "is illegal for the federal government to pay for overtime that is not worked." Id. at 10. According to the Arbitrator, the Agency's assertion is overly broad, rewrites federal law, and excludes the jurisdiction of the Back Pay Act from all overtime situations.
The Arbitrator found that under the Back Pay Act, an award of back pay is justified when an arbitrator finds that the aggrieved employee was affected by an unjustified and unwarranted personnel action and that the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. Applying the Back Pay Act to the circumstances of this case, the Arbitrator determined that the grievant was adversely affected by the Agency's unjustified and unwarranted personnel action and that this action resulted in the withdrawal or reduction of the grievant's pay. The Arbitrator therefore concluded that it was "legal and appropriate for [him] to award back pay to the [g]rievant." Id. at 10.
As a remedy, the Arbitrator ordered that the grievant be compensated for 2.5 hours of overtime, with interest. The Arbitrator further retained jurisdiction to permit the Union to submit a request for attorneys fees.
III. Positions of the Parties
A. Agency's Exceptions
The Agency filed five exceptions alleging that the award fails to draw its essence from the parties' master agreement or is contrary to law and/or regulation.
First, the Agency asserts that Article 48, section 3 of the parties' master agreement provides that "[a]rbitration hearings will be held during regular day shift duty hours at the facility where the grievance was filed." Exceptions at 1. According to the Agency, the Arbitrator was "fully aware" of this provision, as well as the fact that the decision in VA Coatesville had been appealed. Id. The Agency submits that in these circumstances, the Arbitrator erred in directing that the hearing be conducted off-site.
Second, the Agency contends that the Arbitrator's decision to hold the hearing off-site violates Article 48, section 5 of the parties' master agreement. The Agency asserts that this provision provides that an arbitrator derives his authority from the negotiated agreement and in rendering a decision, may not "add to, subtract from, or modify any of the [agreement's] terms[.]" Id. at 2. The Agency argues that in this case, the Arbitrator decided to hold the hearing off-site even if the hearing [ v56 p831 ] was ex parte. The Agency further argues that this decision influenced the award.
Third, the Agency submits that the award fails to draw its essence from a provision in Article 14, section 3 of the parties' master agreement which states that "[m]anagement will endeavor to avoid overtime of more than 4 hours at the end of an 8 hour shift." Id. The Agency explains that management has an agreement with the Union to seek volunteers when overtime work is required. The Agency further explains that as no volunteer was available at 7:00 a.m., the grievant was "ordered to stay for overtime on her unit." Id. Nevertheless, since the grievant had already worked an 8 hour shift, management continued to seek relief for her, in accordance with Article 14, section 3.
In support of its third exception, the Agency submits a number of documents, including its local supplemental agreement, it Nursing Service Policy #45-1955, entitled "Overtime", copies of its center-wide voluntary overtime roster, and "the unit potential overtime roster" for the time period at issue. Id. at 3. According to the Agency, a review of the overtime rosters shows that as the grievant did not sign either of them, neither roster has been violated. A review of the remaining documents also shows, in the Agency's view, that it did not violate the parties' master agreement or their local supplemental agreement. The Agency maintains that, nevertheless, the Arbitrator "took it upon himself to modify the terms of the [m]aster [a]greement." Id.
The Agency also asserts in exception three that nothing in Article 14 mandates that employees receive overtime compensation for time that has not been worked. The Agency points out that Article 14, section 1 states that "[o]vertime work shall be paid for in accordance with laws and regulations of higher authority." Id. Pursuant to this provision, the Agency submits that the Arbitrator erred in ordering that the grievant be paid for 2.5 hours that she did not work.
As its fourth exception, the Agency contends that the award is contrary to law and regulation. The Agency argues, in this regard, that under the Fair Labor Standards Act (FLSA) and its implementing regulations, an employee is entitled to overtime compensation only for work that is actually performed. According to the Agency, decisions of the Comptroller General hold that even if overtime has been scheduled, there is no entitlement to overtime compensation unless the overtime is actually worked.
The Agency further maintains in exception four that the Arbitrator's decision is contrary to management's right to assign work under section 7106. In this connection, the Agency asserts that in awarding overtime compensation in the circumstances of this case, the Arbitrator "has decided that employees are to be compensated for what hours they deem appropriate." Exceptions at 7. In the Agency's view, if the Arbitrator's reasoning is permitted to stand, "any time [it] assign[s] overtime work to an employee, [the employee] will be guaranteed that number of hours even if there is no work to be performed[.]" Id. at 7-8.
As its final exception, the Agency maintains that an award of attorney fees would violate the Back Pay Act. The Agency submits that this is because there is no "proof" that an unwarranted personnel action has been committed.
B. Union's Opposition
The Union asserts that the Agency's exceptions "attempt to introduce facts not in evidence at [the] arbitration hearing." Opposition at 3. The Union notes that as this "evidence" was not presented, it did not have the opportunity to "attack" its "veracity." Id. The Union adds that the Agency does not allege that these facts are new or material. As section 2429.5 of the Authority's Regulations, as well as Authority precedent, preclude consideration of evidence that was not presented to the arbitrator, the Union requests that certain portions of the Agency's exceptions be disregarded.
The Union next addresses the Arbitrator's determination to conduct the hearing off-site. First, the Union asserts that the Agency previously challenged this determination in "exceptions" filed with the Authority on February 18, 2000. The Union further asserts that the Agency failed to respond to the subsequent Notice and Order to Show Cause and, on May 16, 2000, the Agency's exceptions were dismissed. Although the Union acknowledges that exceptions determined to be interlocutory are normally dismissed without prejudice, in this case "th[e] matter includes a failure to file the exceptions in the proper manner." Id. at 4-5. As such, the Union argues that the Agency's first and second exceptions, which challenge the location of the hearing, should be dismissed.
If the first and second exceptions are not dismissed, the Union contends that it is well established that an award will not be found deficient simply because an arbitrator has decided to proceed ex parte. See id. at 5 citing, inter alia, Equal Employment Opportunity Commission and American Federation of Government Employees, National Council of EEOC Locals No. 216, 48 FLRA 822, 831-32 (1993). The Union points out [ v56 p832 ] that in this case, the Agency not only refused to participate in the hearing but, in so doing, also violated the order in VA Coatesville which requires it to abide by all such future arbitration determinations. In these circumstances, the Union submits that exceptions one and two should be denied.
With respect the Agency's third exception, the Union contends that it is "factually deficient and contrary to the evidence introduced at the hearing." Id. at 6. The Union notes that the Agency had the opportunity to present conflicting views of the evidence, as well as additional arguments, at [the] hearing or in its post-hearing brief. As the Agency failed to do so, the Union contends that its third exception should be disregarded. The Union also submits that longstanding Authority precedent authorizes the payment of overtime where a violation of a collective bargaining agreement has been established.
Finally, the Union disputes the Agency's claim that it is not entitled to attorney fees. According to the Union, in the event the Authority affirms the award, the Arbitrator is free to consider its request.
IV. Analysis and Conclusions
A. The Award does not Fail to Draw its Essence from the Parties' Master Agreement
1. Standard of Review
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Statute provides that the Authority apply the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) 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; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
2. Article 48, Section 3
The Agency's first exception challenges the Arbitrator's decision to hold the hearing off-site on the ground that it fails to draw its essence from Article 48, section 3 of the parties' master agreement. As the Arbitrator observed, however, this argument was rejected by the Judge in VA Coatesville which involved the same parties and substantially similar facts.
The facts of VA Coatesville show that the President of Local R3-35 worked for the Agency until January 1997, when he was removed for sexual harassment. As a part of his removal, this individual was prohibited from accessing the Agency's premises for almost all purposes, including Union representation. Thereafter, between January 1997 and August 1999, the parties conducted three arbitration hearings and four negotiation sessions at the Coatesville Community Center and the President of Local R3-35 was present for each. In September 1999, the Union again requested that an arbitration be conducted at the Coatesville Community Center so that its President could attend. On that occasion, however, the Agency opposed holding the hearing off-site based on Article 48, section 3 of the parties' master agreement. When the arbitrator granted the Union's request, the Agency refused to participate in the hearing. The Agency's refusal ultimately resulted in the issuance of a complaint.
The Judge rejected the Agency's claim that Article 48, section 3 of the parties' agreement precluded the arbitrator from conducting the hearing off-site. In doing so, the Judge found that under section 7121 of the Statute, parties are required to include grievance and arbitration provisions in their collective bargaining agreements. The Judge further found that it has long been established that a party's refusal to participate in grievance and arbitration procedures violates section 7116(a)(1) and (8). According to the Judge, such refusals include disputes regarding the location of an arbitration.
In addition, the Judge discussed the Authority's recent decision in U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA 704, 713-714 (1999), in which a union's right to designate its representative was addressed. Based on the reasoning of that decision, the Judge found that special circumstances existed which warranted the Agency's refusal to grant the President of Local R3-35 access to its premises. However, by refusing to permit him to enter onto its premises while, at the same time, refusing to participate in an off-site hearing, the Judge concluded that the Agency had effectively denied the Union the right to designate its representative. The [ v56 p833 ] Judge, accordingly, ordered the Agency to abide by the arbitrators' decisions, including those that designate an off-site location. [n4]
Based on the decision in VA Coatesville as well as the circumstances of this case, the Arbitrator granted the Union's request to have the hearing conducted off-site. In our view, the Agency has failed to demonstrate that the Arbitrator's decision is implausible, irrational, or in manifest disregard of the parties' master agreement. As such, we deny this exception. [n5]
3. Article 48, Section 5
As its second exception, the Agency maintains that the Arbitrator's determination to hold the hearing off-site also fails to draw its essence from Article 48, section 5 of the parties' master agreement. The Agency states that pursuant to that section "[t]he Arbitrator will derive his/her authority from this negotiated agreement and, in rendering a decision, must not add to, subtract from, or modify any of the terms of this agreement." Exceptions at 6. According to the Agency, the Arbitrator's determination to hold the hearing off-site "influenced his arbitration decision." Id.
Notwithstanding the foregoing contentions, the Agency has failed to articulate how the Arbitrator's determination is inconsistent with Article 48, section 5 of the parties' master agreement and any such inconsistency is not apparent to us. In these circumstances, we conclude that the Agency has failed to demonstrate that Arbitrator's determination is implausible, irrational, or in manifest disregard of the parties' master agreement. We, therefore, find that this aspect of the award does not fail to draw its essence from the parties' master agreement and accordingly deny this exception. See Social Security Administration, Mid-Atlantic Program Service Center and American Federation of Government Employees, Local 1923, 53 FLRA 956, 960 (1997).
4. Article 14, Section 3
As its third exception, the Agency claims that the award fails to draw its essence from Article 14, section 3 which provides that "[m]anagement will endeavor to avoid overtime of more than 4 hours at the end of an 8 hour shift." Exceptions at 2. According to the Agency, since the grievant had already worked 8 hours, it "did not violate the Agreement when it sent the grievant home prior to the end of the overtime shift." Exceptions at 3.
The Arbitrator found, based on the evidence before him, that although the parties' master agreement "frown[ed]" on the practice of asking employees to work eight hours of overtime, the Agency frequently followed it. [n6] In particular, the Arbitrator found that the relevant nursing schedule for the period April 5-11, 1998, included ten instances in which employees had been scheduled to work at least seven hours of overtime immediately before or after their regular shifts. Award at 9-10. In our view, in light of these factual findings, the Agency's arguments fail to demonstrate that the Arbitrator's decision is implausible, irrational, or in manifest disregard of the parties' master agreement. Consequently, we deny this exception.
B. The Award is Not Contrary to Law and Regulation
1. Standard of Review
The Authority reviews questions of law raised by a party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [ v56 p834 ]
2. The FLSA and its Implementing Regulations
To remedy the contract violation found in this case, the Arbitrator ordered the Agency to compensate the grievant for the 2.5 hours that she was not permitted to work, with interest. The Agency claims that this remedy is contrary to the FLSA and its implementing regulations because it would require the payment of overtime for periods during which the grievant did not work. The Union disputes the Agency's claim and contends that longstanding precedent provides for the payment of overtime where a collective bargaining agreement has been violated.
Under the Back Pay Act an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210 (1998). With regard to the first requirement, it is well established that a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See, e.g., International Association of Machinists and Aerospace Workers, Lodge 2261 and American Federation of Government Employees, Local 2185, 47 FLRA 427, 434 (1993) (IAM, Lodge 2261). As discussed above, in this case, the Arbitrator found that the Agency violated the parties' master agreement by precluding the grievant from completing the remainder of her overtime shift. Consequently, the award satisfies the first requirement of the Back Pay Act.
With regard to the second requirement for back pay awards, the Authority has found that missed overtime pay constitutes a withdrawal or reduction of an employee's pay, allowances, or differentials. See U.S. Department of the Treasury, U.S. Customs Service, Portland, Oregon and National Treasury Employees Union, Chapter 156, 54 FLRA 764, 770-71 (1998). In this case, the Arbitrator specifically found that the Agency's unjustified and unwarranted personnel action resulted in the withdrawal or reduction of the grievant's pay. Accordingly, we find that the award satisfies the second requirement of Back Pay Act.
We also reject the Agency's unfounded contention that the remedy is contrary to the FLSA and its implementing regulations. Consistent with well-established precedent, the Authority in IAM, Lodge 2261 noted that it had previously addressed various statutory and regulatory provisions governing overtime and had found that awards of overtime compensation were warranted in cases where employees did not actually perform overtime work. E.g., Federal Employees Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3 (1991); Veterans Administration Medical Center, Palo Alto, California and American Federation of Government Employees, Local 2110, 36 FLRA 98 (1990); U.S. Army Aberdeen Proving Ground, Installation Support Activity and National Federation of Federal Employees, Local 2058, 28 FLRA 566 (1987). The Authority further noted that in each of these cases, the fact that the employee did not actually work overtime did not render a remedy of overtime compensation unlawful. The Authority explained that it "reached such a result because the employees would have worked the overtime had the agency not engaged in improper conduct and, therefore, the employees suffered a loss of pay because of that conduct." IAM, Lodge 2261, 47 FLRA at 436.
As described above, in this case the Arbitrator found that the grievant was entitled to overtime compensation based on his finding that but for the Agency's failure to comply with the parties' master agreement, the grievant would have been paid overtime for the additional 2.5 hours that she had been approved to work. Therefore, consistent with IAM, Lodge 2261 and the cases cited therein, we find the Agency's contention that the Arbitrator's remedy violates the FLSA and its implementing regulations to be wholly without merit. We therefore reject this exception.
3. The Right to Assign Work under Section 7106
Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., International Association of Fire Fighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327, 328 (1995). The Agency contends that the award is deficient because it is contrary to its right to assign work under section 7106 of the Statute. There is no indication in the record before us, however, that the Agency raised the section 7106(a) management rights issue before the Arbitrator as it has in its exceptions. As this issue could have, and should have, been raised at that time, we find that the Agency cannot do so now. Accordingly, we conclude that this argument is barred from consideration. See American Federation of Government Employees, Local 1399 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 54 FLRA 1143, 1149-50 (1998). [ v56 p835 ]
4. Attorneys Fees
As its final exception, the Agency maintains that an award of attorneys fees would violate the Back Pay Act because there is no proof that an unwarranted personnel action has been committed. We find that this contention is premature.
It is well established that under the Back Pay Act and its implementing regulations, an arbitrator may retain jurisdiction after issuing an award for the purpose of considering requests for attorney fees. See Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 51 FLRA 1262, 1263 (1996); see also U.S. Department of the Treasury, U.S Customs Service, Nogales, Arizona and National Treasury Employees Union, Chapter 116, 48 FLRA 938, 940 (1993). As the Arbitrator in this case merely retained jurisdiction for this purpose and did not make any determination on the merits, the Agency's attorney fee exception is premature. Accordingly, we find that this exception should be dismissed without prejudice.
The Agency's exceptions are denied.
Footnote # 1 for 56 FLRA No. 137
The Authority's records show that on February 18, 2000, the Agency filed "exceptions" to the Arbitrator's determination to conduct the hearing off-site. Thereafter, on April 14, 2000, the Authority directed the Agency to show cause why its exceptions should not be dismissed because they had been inappropriately filed and because they were interlocutory. As the Agency failed to respond to the Notice and Order to Show Cause, the Agency's exceptions were dismissed.
Footnote # 2 for 56 FLRA No. 137
At the close of the hearing, the Arbitrator directed the Union to serve a copy of all of its exhibits on the Agency. The Arbitrator also granted both parties the opportunity to submit post-hearing briefs. The Arbitrator limited the Agency's brief, however, to "arguments derived from the Union's [e]xhibits and any legal issues that the [Agency] may choose to raise." Award at 4. Both the Union and the Agency submitted briefs.
Footnote # 3 for 56 FLRA No. 137
Section 2 - Overtime work shall be distributed fairly and equitably among qualified employees[.]
Award at 4-5.
Footnote # 4 for 56 FLRA No. 137
Footnote # 5 for 56 FLRA No. 137
The Authority has consistently held that arbitration awards are not deficient on the ground that an arbitrator held an ex parte hearing when a party to the arbitration refused to be present at the arbitration hearing. See, e.g., U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 1117, 1123- 24 (1991) (union provided no basis for finding the award deficient on the ground that the arbitrator proceeded with the hearing ex parte where the union's representative boycotted the hearing).
Footnote # 6 for 56 FLRA No. 137
In support of this exception, the Agency has submitted a number of documents that were not presented to the Arbitrator. These documents have therefore not been considered. See 5 C.F.R. § 2429.5 (Authority will not consider evidence offered by a party that was not presented in the proceedings before the arbitrator).