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63 FLRA No. 44
OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF DISABILITY ADJUDICATION
CHARLESTON, SOUTH CAROLINA
February 17, 2009
Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member
This matter is before the Authority on exceptions to an award of Arbitrator John R. Canada 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. [n1]
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 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); United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593-94 (1993) (award not deficient as based on a nonfact where excepting party either challenges a factual matter that the parties disputed at arbitration or fails to demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator); 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 evidences a manifest disregard of the agreement). [n2]
Accordingly, the Union's exceptions are denied.
Footnote # 1 for 63 FLRA No. 44 - Authority's Decision
In its opposition, the Agency claims that, in the portion of the award wherein the Arbitrator addressed the Union's motion for sanctions, the Arbitrator "did not rule that the Agency pay travel expenses and only commented on the issue." Opposition at 3. In this regard, the Agency asserts that the issue of sanctions "was not before the [A]rbitrator at the hearing." Id. To the extent this claim relates to the validity of the underlying award, we construe it as an exception to the award. See, e.g., SSA, Office of Labor Mgmt. Relations, 60 FLRA 66, 67 (2004) (SSA). So construed, as the exception was filed beyond thirty days after the award was served on the parties, it was not timely filed. See 5 C.F.R. §§ 2425.1(b), 2429.22, and 2429.27(d). Accordingly, as the exception was not timely filed, it is dismissed. See SSA, 60 FLRA at 67.
Footnote # 2 for 63 FLRA No. 44 - Authority's Decision
Chairman Beck agrees that the Agency did not timely except to the Arbitrator's award of sanctions, which leaves the Authority unable to review that aspect of the award. However, he notes that neither the award nor any other part of the record before the Authority makes clear precisely what the Agency did that could be considered sanctionable. It appears that, prior to the hearing, the Agency and the Union disagreed as to whether the Union's representatives at the hearing should also be permitted to act as witnesses. The Arbitrator does not expressly state how he resolved this disagreement, but his award reflects that the individuals whom the Union originally designated as its representatives did in fact testify, and that the Union "brought in [two other individuals] as representatives." Award at 5. It is the Arbitrator who ultimately decides procedural and evidentiary matters such as who may be present in the hearing room and who may testify. In the circumstances, it is far from apparent what the Agency did -- or even what it might have done -- to warrant the imposition of sanctions.