American Federation of Government Employees, Local 738 (Union) and United States Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas (Agency)
65 FLRA No. 196
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
COMBINED ARMS CENTER AND
FORT LEAVENWORTH, KANSAS
June 27, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Michael D. Gordon 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.
The Arbitrator determined that the Agency did not violate applicable law or the parties’ agreement in evaluating the grievant’s performance, and denied the grievance. For the following reasons, we dismiss the Union’s exceptions.
II. Background and Arbitrator’s Award
The Union filed a grievance on behalf of the grievant after he received an “unsuccessful” overall rating on his performance evaluation. Award at 14. The grievance was unresolved and submitted to arbitration, where the Arbitrator framed the issue as: “Did [the] [g]rievant’s . . . [p]erformance [e]valuation violate applicable law and/or the [parties’ agreement][;] and, if so . . . [w]hat is the appropriate remedy?” Id. at 3.
As an initial matter, the Arbitrator identified Article XVIII, Sections 1 and 3 and Article XXIX, Section 2(c) as the relevant provisions of the parties’ agreement. Id. He found that “[a]n evaluation must be in good faith and supported by convincing, demonstrable facts that reflect Article XVIII[’s] values and safeguards[,]” and that, “[i]n [the] instan[t] [case], the Agency satisfied these criteria[.]” Id. at 28. The Arbitrator further found that “[a]ny Article XXIX deficiencies either involve ministerial requirements with no direct impact on the evaluation itself or other collateral matters that [do] not diminish its legitimacy.” Id. at 29. In addition, he determined that the Agency did not violate applicable law in evaluating the grievant. Id. at 23, 29. Accordingly, he denied the grievance. Id. at 29.
III. Positions of the Parties
A. Union’s Exceptions
The Union argues that the Arbitrator “created harmful errors by asking management how he should rule[,]” “fighting with the Union rep[,]” and “not identifying or holding management accountable for [its] failure to comply with”: (1) “due process in the evaluation and arbitration processes”; (2) “5 U.S.C. [C]hapter 43 and [§] 5307(d) and 5 C.F.R. [part] 430”; (3) “the Negotiated Agreement”; (4) its obligation to provide “truthful testimony,” as well as data that is “legally required” under “5 U.S.C. § 7101”; and (5) the Union’s “request for witnesses.” Exceptions at 1-2. The Union also argues that the Agency failed to comply with “AR 690-400 Chapter 4302 Total Army Performance Evaluation System[,]” as well as “the Occupational Safety and Health Act [(OSHA)] of 1970, 29 [U.S.C.] [§] 660 & [§] 2112 of title 28, United States Code Pub. L. 98-620 & SEC. 11, Executive Order 12196, OSHA 29 [C.F.R.] [part] 1960, DODI 6055.1, DODI 6055.5, AR 385-10 and AR 40-5[.]” Id. at 1. The Union’s remaining exceptions quote testimony and summarize evidence presented at the hearing. See id. at 2-138.
B. Agency’s Opposition
The Agency contends that “the creation of ‘harmful errors’ is not a specific ground for review of an arbitrator’s award as provided for in 5 [C.F.R.] § 2425.6[,]” and, therefore, the exceptions “must be dismissed in [their] entirety.” Opp’n at 4, 6. In this connection, the Agency asserts that the Union “does not provide any justification in support of its ‘harmful errors’ claim other than [its] reference to the arguments contained in its post-hearing brief.” Id. at 6.
IV. Analysis and Conclusions
The Authority’s Regulations specifically enumerate the grounds that the Authority currently recognizes for reviewing awards. See 5 C.F.R. § 2425.6(a)-(b). In addition, the Regulations provide that if exceptions argue that an arbitration award is deficient based on private-sector grounds not currently recognized by the Authority, then the excepting party “must provide sufficient citation to legal authority that establishes the grounds upon which the party filed its exceptions.” 5 C.F.R. § 2425.6(c).
Further, § 2425.6(e)(1) of the Regulations provides that an exception “may be subject to dismissal or denial if: . . . [t]he excepting party fails to raise and support” th