[ v57 p273 ]
57 FLRA No. 56
AMERICAN FEDERATION OF
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
FORT RUCKER COMMISSARY
FORT RUCKER, ALABAMA
June 20, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members
This matter is before the Authority on exceptions to an award of Arbitrator William H. Mills filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
Under § 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. Upon careful consideration of the entire record in this case, and Authority precedent, the Authority concludes that the award is not deficient on the grounds raised in the exceptions and set forth in § 7122(a). See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (award not deficient as failing to draw its essence from the parties' collective bargaining agreement where excepting party fails to establish that the award cannot in any rational way be derived from the agreement; is so unfounded in reason and fact and so unconnected to the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement); Int'l Ass'n of Fire Fighters, Local F-89, 50 FLRA 327, 328 (1995) (the Authority will not consider an issue that could have been, but was [ v57 p274 ] not, raised before the Arbitrator) [n1] ; AFGE, Local 1668, 50 FLRA 124, 126 (1995) (award not deficient on ground that arbitrator failed to provide a fair hearing where excepting party fails to demonstrate that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party so as to affect the fairness of the proceeding as a whole). [n2]
Accordingly, the Union's exceptions are denied.
Footnote # 1 for 57 FLRA No. 56
Footnote # 2 for 57 FLRA No. 56
We note that the Union claims the grievant was denied due process because the Agency did not provide the Union with the original performance counseling form. Consistent with Authority precedent, we construe this claim as an assertion that the Arbitrator failed to conduct a fair hearing. See AFGE, Local 3947, 47 FLRA 1364, 1374 (1993); AFGE, Local 1617, 41 FLRA 237, 244 (1991).