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American Federation of Government Employees (Union) and United States Department of Veterans Affairs, Austin Automation Center Austin, Texas (Agency)

[ v57 p769 ]

57 FLRA No. 169

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
AUSTIN AUTOMATION CENTER AUSTIN, TEXAS
(Agency)

0-AR-3427

_____

DECISION

May 7, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

      This matter is before the Authority on an exception to an award of Arbitrator I. B. Helburn 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. [n1] The Agency filed an opposition to the Union's exception.

      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 exception and set forth in § 7122(a).

      Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., AFGE, Local 2145, 55 FLRA 366, 368 (1999) (Local 2145). The Union contends in its exception that the Arbitrator erred in failing to apply the Department of Labor's regulations in concluding that the grievants were exempt from the Fair Labor Standards Act. This issue could have been presented to the Arbitrator, but there is no indication in the award or elsewhere in the record that it was raised before the Arbitrator. Since the Union's argument could have been, but was not, presented by NFFE to the Arbitrator, we will not consider the Union's argument on exception. See, e.g., Local 2145, 55 FLRA at 368.

      Accordingly, the Union's exception is denied.

Footnote # 1 for 57 FLRA No. 169

   The National Federation of Federal Employees (NFFE), Local 1745 filed the grievance in this case. After the arbitration hearing, the American Federation of Government Employees (AFGE) won an election and was certified as the representative of a nation-wide bargaining unit of employees at the Department of Veterans Affairs who had previously been represented by NFFE. See Exception at 1 n.1 and Opposition at 2. Subsequently, AFGE filed the exception to the award.