35:1108(122)AR - - AFGE Local 3529 and DOD, Defense Contract Audit Agency - - 1990 FLRAdec AR - - v35 p1108



[ v35 p1108 ]
35:1108(122)AR
The decision of the Authority follows:


35 FLRA No. 122

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3529

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE CONTRACT AUDIT AGENCY

(Agency)

0-AR-1747

DECISION

May 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Wilma R. K. Rader. The grievant filed a grievance over the Agency's failure to grant him a career-ladder promotion. The Arbitrator denied the grievance.

The Union filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

We conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and the Arbitrator's Award

The grievant is a GS-9 auditor in a career-ladder position that progresses from GS-5 to GS-12. Under the parties' collective bargaining agreement, auditors systematically earn noncompetitive promotions to the full-performance level by demonstrating ability to perform at the successively higher grades. The grievant was hired by the Agency in July 1984 as a GS-7 auditor and has worked under several different supervisors. During the grievant's probationary year, the grievant's supervisor indicated that the grievant demonstrated the potential to reach the full-performance level, but that he would require more than normal career progression time limits. The grievant was rated in the range of "fully satisfactory" for his probationary year and was granted a career-ladder promotion to GS-9 in July 1985.

For the evaluation period covering July 1985 - July 1986, the grievant's supervisor at that time rated the grievant in the range of "fully satisfactory." However, the supervisor indicated that the grievant needed "much improvement . . . in his auditing knowledge and that the grievant did not meet the requirements of a higher grade." Award at 3.

In two performance evaluations covering the period from July 1986 - January 1988, the grievant's supervisor at that time rated the grievant at the lowest level of the range of "fully satisfactory." This supervisor also concluded that the grievant did not meet the qualifications for promotion to GS-11.

In March 1988, the grievant was provided a development plan for promotion to GS-11. His supervisor reviewed assignments under the development plan and again concluded that the grievant's performance was less than that required for GS-11 work. Another supervisor who reviewed the grievant's work under the development plan also concluded that the grievant's performance was less than that required for GS-11 work. In May 1988, the grievant was assigned to a new supervisor who continued to implement the development plan. For the period June 1988 - November 1988, this supervisor concluded that the grievant had not demonstrated the ability to do GS-11 work.

The grievant filed a grievance which was submitted to arbitration.

The Arbitrator stated the issue to be whether the Agency violated provisions of law, the DCAA Personnel Management Manual, or the collective bargaining agreement in failing to promote the grievant to GS-11. The Arbitrator noted that the Union alleged that the failure of the grievant to be promoted was the result of inadequate training, improper supervision, and disparate treatment by the Agency. The Union further alleged that the Agency failed to turn over supervisory appraisal sheets for other employees as requested and asked that the Arbitrator draw a negative inference from the failure to provide the information.

The Arbitrator rejected the Union's allegation that the grievant's failure to be promoted was the result of inadequate training. She found that the grievant had access to the same training opportunities available to other auditors.

The Arbitrator found some merit to the Union's allegation of improper supervision. She agreed with the Union that the supervision provided by one of the grievant's supervisors was "below standard." Id. at 12. However, she noted that, in the opinion of every supervisor who had worked with the grievant since September 1985, including three supervisors other than the supervisor the Arbitrator viewed as below standard, the grievant had not met the requirement for promotion by demonstrating the ability to do the work required at the GS-11 level. The Arbitrator determined that the Union offered no evidence sufficient to refute the judgments of the three supervisors who corroborated the assessments made by the other supervisor.

The Arbitrator also rejected the Union's allegation of disparate treatment. She found that the Union's examples to support the allegation were unconvincing. The Arbitrator did find that the Regional Career Management Board had not reviewed the grievant's record or made any written recommendations as "suggested" by the DCAA Personnel Management Manual. Id. at 15 n.1. However, the Arbitrator concluded that the institution of the career development plan for the grievant largely cured this defect. The Arbitrator further found that the day-to-day guidance and detailed job critiques provided to the grievant by his supervisors made up for the occasional failure to provide a mid-year review.

In response to the Union's request to draw a negative inference from the Agency's refusal to produce supervisory appraisal sheets for other employees who were GS-9 or GS-11 auditors in the last 4 years, the Arbitrator noted that such sheets are kept on file only until the preparation of the annual appraisal. While recognizing that the information might have been useful to the Union, the Arbitrator ruled that "the Agency cannot be expected to produce documents that it is not required to retain and that, in fact, it does not have." Id. at 17. Because she found no evidence of bad faith in the Agency's failing to retain the documents, the Arbitrator refused to draw a negative inference from the Agency's inability to produce the documents.

Accordingly, the Arbitrator denied the grievance. She concluded that the grievant's failure to be promoted did not violate the collective bargaining agreement or any law, rule, or regulation. She stated that even if there had not been improper supervision by one supervisor and the few minor deviations from the rules, the grievant still would not have been promoted because he had failed to establish to date that he had the ability to perform work successfully at the GS-11 level.

III. First Exception

A. Positions of the Parties

The Union contends that "the Arbitrator made misstatements of fact that are refuted by testimony in the transcript of the hearing." Union's Exceptions at 1. The Union notes the Arbitrator's statement that one of the grievant's supervisors "had approximately three employees under his supervision who did not make promotion to GS-11 or GS-12 on their anniversary dates." Award at 5. The Union claims that the supervisor testified that he did not recall any employees who were not promoted on their anniversary date and that the supervisor's testimony was corroborated by the Agency's branch manager. The Union also notes the Arbitrator's statement that "the Agency cannot be expected to produce documents that it is not required to retain and that, in fact, it does not have." Id. at 17. The Union claims that management never testified that the documents did not exist.

The Agency contends that the Union's exception constitutes nothing more than an attempt to relitigate the merits of the case.

B. Analysis and Conclusion

We conclude that the Union's exception fails to establish that the award is deficient. The exception constitutes nothing more than disagreement with the Arbitrator's findings of fact. An exception that constitutes nothing more than disagreement with the arbitrator's findings of fact provides no basis for finding an award deficient under the Statute. For example, Department of the Army, 7th Infantry Division (Light), Fort Ord, California and American Federation of Government Employees, Local 2082, 34 FLRA 916 (1990). Furthermore, to the extent that the Union is contending that the award is based on a nonfact, the Union's exception provides no basis for finding the award deficient. We will find an award deficient on this ground when it is demonstrated that the central fact underlying the award is concededly erroneous and constitutes a gross mistake of fact but for which a different result would have been reached. For example, U.S. Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 35 FLRA No. 83 (1990). In this case, the Union fails to demonstrate that the alleged misstatements were the central fact underlying the award; that they were concededly erroneous; and that but for the Arbitrator's erroneous findings, the Arbitrator would have reached a different result.

IV. Second Exception

A. Positions of the Parties

The Union contends that the Arbitrator "glossed over Agency violations of the Collective Bargaining Agreement and the DCAA Personnel Management Manual." Union's Exceptions at 1. The Union maintains that it showed various violations, but the Arbitrator only responded to the allegation concerning a career management board. The Union also argues that the Arbitrator incorrectly determined that the career development plan cured the defect in not having the board review the grievant's record.

The Agency contends that the Arbitrator addressed the alleged violations of the collective bargaining agreement and the DCAA Personnel Management Manual and found the allegations to be without merit. The Agency claims that the Union's exception is nothing more than an attempt to relitigate the merits of the grievance and disagreement with the Arbitrator's interpretation of the collective bargaining agreement and the DCAA Personnel Management Manual and her reasoning and conclusions.

B. Analysis and Conclusion

We conclude that the Union's exception fails to establish that the award is deficient.

The Arbitrator expressly concluded that the Agency's failure to promote the grievant did not violate the collective bargaining agreement or any relevant provisions of law or the DCAA Personnel Management Manual. The Union's contention that it "showed various Agency violations of the Collective Bargaining Agreement and the DCAA Personnel Management Manual," id. at 2, constitutes nothing more than an attempt to relitigate the case before the Authority and disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement, findings of fact, evaluation of the evidence and testimony, and reasoning and conclusions. The Union's contention provides no basis for finding the award deficient. See, for example, Veterans Administration, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 898 (1990) (disagreement with an arbitrator's interpretation of a collective bargaining agreement, findings of fact, and reasoning and conclusions provides no basis for finding an award deficient); U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 34 FLRA 315 (1990) (an exception that constitutes nothing more than an attempt to relitigate the case before the Authority and disagreement with the arbitrator's evaluation of the evidence and reasoning and conclusions provides no basis for finding an award deficient).

The Union's contention that the Arbitrator "glossed over" the alleged violations by the Agency also provides no basis for finding the award deficient. The Arbitrator's failure to specify or discuss all the alleged violations in ruling that the failure of the grievant to be promoted did not violate the collective bargaining agreement or any law, rule, or regulation does not render the award deficient. See Veterans Administration Medical Center, Richmond, Virginia and American Federation of Government Employees, Local 2145, 34 FLRA 524 (1990) (rejecting contention that the arbitrator was obligated to set forth specific findings and rationale to support the award denying the grievance and citing Wissman v. Social Security Administration, 848 F.2d 176 (Fed. Cir. 1988), in which the court indicated that there is no general statutory obligation that an arbitrator set forth specific findings); American Federation of Government Employees, Local 2327 and Department of Health, Education, and Welfare, Social Security Administration, 5 FLRA 189 (1981) (an arbitrator need not discuss the specific provisions involved in a case and a failure to mention them in the opinion accompanying an award does not establish that the arbitrator did not rule on them).

The Union's argument that the Arbitrator incorrectly determined that the career development plan cured the defect of not having the Regional Career Management Board review the grievant's record fails to establish that the award denying the grievance is deficient. The Union's contention constitutes nothing more than disagreement with the Arbitrator's findings of fact and her reasoning and conclusions and provides no basis for finding the award deficient. See, for example, Veterans Administration, Leavenworth, Kansas, 34 FLRA 898. Furthermore, the Arbitrator acknowledged that there were "deviations from the rules." Award at 18. Nevertheless, she denied the grievance because she found that the grievant would not have been promoted even if the rules had been complied with in that he had failed to establish his ability to successfully perform the work at the GS-11 level. The Union's argument over whether the board review defect was cured does not address this basis of the award and fails to establish that the award is deficient. See 7th Infantry Division (Light), Fort Ord, California, 34 FLRA 916 (exceptions were denied because they failed to address the basis stated by the arbitrator for his award).

V. Third Exception

A. Positions of the Parties

The Union contends that the Arbitrator failed to adequately address its concerns about the Agency's failure to produce crucial records. The Union claims that this failure by the Arbitrator prevented it from adequately presenting its case. The Union maintains that the only reasonable conclusion to be drawn from the Agency's failure to produce the requested documents is that the Agency's position would have been harmed by the release of the information. The Union requests that the Authority draw such a conclusion and set aside the award.

The Agency contends that the Arbitrator adequately discussed the matter.

B. Analysis and Conclusion

We conclude that the Union's exception fails to establish that the award is deficient. We find that the Arbitrator fully addressed the Union's concerns about the Agency's failure to produce the required documents. She readily recognized the usefulness of the information to the Union. However, she found that "the Agency cannot be expected to produce documents that it is not required to retain and that, in fact, it does not have." Award at 17. Therefore, in our view, the Union's exception disputing the Arbitrator's refusal to draw a negative inference is premised on the existence of the requested documents and constitutes disagreement with the Arbitrator's factual finding to the contrary. An exception that constitutes disagreement with the arbitrator's factual findings provides no basis for finding the award deficient. For example, 7th Infantry Division (Light), Fort Ord, California.

VI. Decision

The Union's exceptions provide no basis for finding the award deficient and the exceptions are, therefore, denied.




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