Arbitrator Charles J. Murphy issued an award finding that the Agency had violated Article 3 of the parties’ agreement and § 7114(b)(3) of the Federal Service Labor-Management Relations Statute              (the Statute)^[1] when it implemented a new
staff-search policy (the policy) before completing negotiations concerning the policy.

 

 

 

 

 

                The grievance involves the negotiation over, and the implementation of, the policy. At a certain point, the Agency implemented the policy, and the Union filed a grievance claiming that the parties had not completed the negotiations over the policy. The grievance alleged, as relevant here, violations of the parties’ agreement as well as § 7114(b)(3) of the Statute.^[2] The matter was unresolved, and the parties submitted it to arbitration.

 

 

 

                After a hearing and the submission of           post-hearing briefs, the Arbitrator determined that the Agency did not negotiate in bad faith by including the CFR language in its policy. However, the Arbitrator also found that “[b]argaining was not completed as to [the five proposals] and . . . there was and is a continuing duty to bargain in regard to them.”^[3]  Consequently, the Arbitrator found that the Agency had bargained in bad faith and thereby violated the parties’ agreement as well as § 7114(b)(3) of the Statute.

 

 

 

 

                In its exceptions, the Agency argues that it had no duty to bargain because “the record . . . clearly shows that the parties subsequently completed negotiations, and [the Agency] reached agreement with the Union” on the five proposals.^[6] However, before the Arbitrator, the Agency never argued that the Union affirmatively agreed to the proposals, only that the Agency had declared them nonnegotiable, and that the Union did not file a negotiability appeal on those proposals. The Agency maintains that it was unaware that the Union contended that the five proposals had not been fully negotiated until the arbitration hearing.^[7] However, this would not have prevented the Agency from presenting these arguments in its post-hearing brief, submitted after the hearing and after the Agency knew the Union’s contentions. Because these arguments could have been, but were not, raised before the Arbitrator, we find that the Regulations bar consideration of those arguments in support of the exceptions.^[8] Because these arguments are the only arguments advanced in support of the Agency’s exception alleging that the award is contrary to law because the Agency had no duty to bargain, we deny that exception.

 

 

                The Agency also argues that the award is contrary to law because the Arbitrator did not apply the Authority’s balancing test under Federal Correctional Institution.^[9]  According to the Agency, this test “weigh[s] against a status[-]quo[-]ante remedy.”^[10]  Despite this, the Agency continues, the Arbitrator “effectively awarded” a status-quo-ante remedy.^[11] However, the Agency did not argue at arbitration that it would be inappropriate to grant the Union’s requested relief, which the Arbitrator granted, and the Agency now identifies as “effectively . . . status quo ante.”^[12] As such, the Agency cannot raise these arguments now. We dismiss this exception as barred by §§ 2425.4(c) and 2429.5 of the Authority’s Regulations.^[13] 

 

 

                The Union alleges that the Agency included two attachments that were not presented at arbitration.^[14] Consequently, the Union argues that the Authority should dismiss the Agency’s exceptions.^[15] As noted above, the Authority will not consider evidence or arguments that could have been, but were not, presented to the arbitrator.^[16] However, nothing in the Regulations indicates that including evidence not presented at arbitration alone warrants the dismissal of a party’s exceptions.^[17] As such, we do not dismiss the Agency’s exceptions on these grounds.

 

 

                The Agency contends that the award is based on a nonfact.^[18] To establish that an award is based on a nonfact, the excepting party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[19] The absence of facts does not support a nonfact exception.^[20]

 

                The Agency argues that the Arbitrator based his decision “on the nonfact that the parties did not continue negotiating the five proposals at issue after the earlier ones were signed.”^[21] The Agency further alleges that, but for this nonfact, the Arbitrator would have reached a different result. However, the award does not indicate, and the Agency does not identify, where the Arbitrator found that the parties did or did not continue to negotiate on the five proposals after the parties had agreed to the earlier proposals. As such, the Agency relies on the absence of facts to support its exception. As noted above, the absence of facts provides no support for a nonfact exception.^[22] Consequently, we deny this exception.

 

 

The Agency alleges that the award is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible.^[23] To prevail on this ground, the appealing party must demonstrate that the award is impossible to implement because the meaning and effect of the award are too unclear or uncertain.^[24]

 

The Agency argues that the award is incomplete, ambiguous, or contradictory on four grounds: (1) “if the Agency is required to include [the disclaimer text] regardless of the result of further negotiations ordered by the Arbitrator, it is unclear what the parties are to negotiate regarding these five proposals”;^[25] (2) the Arbitrator stated that he had concerns regarding a     status-quo-ante remedy, yet

 

 

(3) “the Arbitrator stated his belief that the parties could expeditiously bargain and resolve the matter given the ‘limited number of proposals at issue’”^[27] but “[t]he [a]ward . . . is void of any description of the type of proposals that must be negotiated, as well as any limitation on the number of such proposals that must be negotiated”;^[28] and (4) the Arbitrator found that the Agency had not acted improperly when it included the CFR language in its policy, yet the remedy requires that the Agency either remove this language from or include the disclaimer text in the policy.

 

                Concerning the first allegation, the award does not require the Agency to include the disclaimer text in the policy, but gives the Agency the choice to either remove the CFR language or to include the disclaimer language. Because the Agency bases this exception on a misinterpretation of the remedy, it does not provide a basis for finding the award deficient.^[29] We deny this exception.

 

 

 

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