United States Department of the Army, Corps of Engineers, Walla Walla District, Pasco, Washington (Agency) and United Power Trades Organization (Union)

[ v63 p161 ]

63 FLRA No. 63

UNITED STATES
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
WALLA WALLA DISTRICT
PASCO, WASHINGTON
(Agency)

and

UNITED POWER
TRADES ORGANIZATION
(Union)

0-AR-4167

_____

DECISION

March 25, 2009

_____

Before the Authority:
Carol Waller Pope, Acting Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator P. M. Williams filed by the United States Department of the Army Corps of Engineers, Walla Walla District (the Agency) [n1] under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions with a motion to dismiss the Agency's exceptions. The Agency filed a motion requesting leave to file a supplemental submission to respond to the Union's motion to dismiss and a request to deny the Union's motion.

      The Arbitrator sustained the grievance challenging the grievant's performance rating. The Arbitrator found that the grievant was not rated fairly and equitably in accordance with the terms of the parties' agreement and ordered the Agency to raise the grievant's rating. For the reasons set forth below, we dismiss and also deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievant is one of two warehouse employees. The grievant received an overall rating of "Fair" on her performance evaluation. As a result, she did not receive a performance award as she had the year before. Award at 2. The grievant's overall rating was "Fair" because she received a rating of "Needs Improvement" on tasks three and four of her performance standards relating to Relationships/Communications and Responsibility/Dependability respectively. Id. at 2-3. The grievant filed a grievance disputing her performance rating and her denial of a performance award. The grievance was not resolved and was submitted to arbitration. The Agency proposed, and the Arbitrator framed the issue as: "Was the grievant rated fairly, accurately and equitably and in accordance with the applicable law and the collective bargaining agreement, and if not, what is the appropriate remedy?" Id. at 2.

      The Arbitrator found that the grievant was treated differently from the only other warehouse employee because the other employee received a mid-year counseling and was able to correct his behavior in time to receive a rating of "Successful." Id. at 3. The Arbitrator found that the supervisor failed to inform the grievant, at her mid-term counseling, that her rating would be lowered if her performance did not improve and that the supervisor's attitude towards the grievant was not "as unbiased as it should have been." Id. Therefore, he concluded that the grievant was not rated fairly and accurately, nor was she "treated equitably and in accordance with the terms of the collective bargaining agreement." Id. at 4. He ordered the Agency to expunge the grievant's "Needs Improvement" rating on tasks three and four and to substitute the expunged portion with a rating of "Successful." Id.

III.     Preliminary Matters

A.     The Union's motion to dismiss the Agency's exceptions is denied.

      As part of its opposition, the Union filed a motion to dismiss the Agency's exceptions because it claims that the Agency was not authorized to file the exceptions. In this regard, the Union asserts that the Agency was not a party to the arbitration within the meaning of 5 U.S.C. § 7122 and that the DOD has not delegated authority to the Agency to file exceptions on its behalf. Subsequently, the Agency filed a motion requesting leave from the Authority, under 5 C.F.R. § 2429.26, to file a supplemental submission to respond to the Union's motion.

      [ v63 p162 ] The Authority's Regulations do not provide for the filing of supplemental submissions. However, § 2429.26 of the Authority's Regulations provides that the Authority may, in its discretion, grant leave to file "other documents" as deemed appropriate. See, e.g., NAGE, Local R3-77, 59 FLRA 937, 940 (2004); AFGE,
Local 2004
, 55 FLRA 6, 9 (1998). Here, the Agency's supplemental submission challenges an issue first raised in the opposition, namely whether the Agency was authorized to file the exceptions. Accordingly, as this issue was first raised in the Union's opposition, the Agency has established sufficient reason for the Authority to consider the supplemental submission. See id.; United States, Dep't of the Air Force, Minot Air Force Base, N. D., 61 FLRA. 366, 367 (2005). Therefore, we grant the Agency's motion.

      Section 7122(a) of the Statute and section 2425.1(a) of the Authority's Regulations provide that exceptions to an arbitration award may be filed by "[e]ither party to arbitration." 5 U.S.C. § 7122(a) and 5 C.F.R. § 2425.1(a). As the arbitration award reflects, the Agency was the named party at arbitration. See Award at 1. Therefore, pursuant to § 7122(a) of the Statute and § 2425.1(a) of the Authority's Regulations, we find that the exceptions were properly filed by the Agency. See United Power Trades Org., 62 FLRA 493, 494 (2008) (Union's motion to strike was denied where the filing party was a party at arbitration and where Agency regulation did not prohibit the filing). Based on the foregoing, we deny the Union's motion.

B.     The Agency's exception regarding Army Regulation 690-400, Total Army Performance Evaluation System (TAPES) is barred by 5 C.F.R. § 2429.5 of the Authority Regulations.

      In its exception, the Agency asserts that the award is contrary to the TAPES because it imposes an additional notice requirement, and a performance improvement period into the TAPES which is not required by applicable law or the parties' agreement (CBA). See Exceptions at 6. The Union argues that the Authority should not consider the Agency's argument because the Agency "never advanced to the Arbitrator" the arguments it is now making concerning the TAPES. Opposition at 6.

      It is well settled that the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See 5 C.F.R. § 2429.5; see also AFGE, Local 3584, 58 FLRA 473, 474 (2003). There is no indication in the record that the issue of whether the Agency complied with the TAPES was raised in arbitration. Consequently, since the issue could have been, but was not, presented at arbitration, it is not properly before the Authority, and we dismiss the Agency's exception.

IV.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award is based on three nonfacts. First, the Agency claims that the Arbitrator erred by confusing the names of the first and second line supervisors. Next, the Agency asserts that the Arbitrator erred by finding that it was inappropriate for the first and second line supervisors to discuss the grievant's evaluation. According to the Agency, the TAPES permit supervisors to discuss employee ratings. [n2]  Finally, the Agency disputes the Arbitrator's finding that it failed to inform the grievant that she was performing at less than a successful level.

      The Agency also argues that the award is ambiguous because the Arbitrator failed to state which law or contract provision was violated. The Agency claims that the lack of reference to any provision of the parties' CBA renders the award deficient.

      Finally, the Agency claims that the award violates management's rights to assign work under § 7106(a)(2)(B) of the Statute because it fails to meet the two-prong test in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C.,
53 FLRA 146 (1997) (BEP). The Agency asserts that the award does not meet prong I because it fails to specify which law or provision of the parties' agreement was violated. In support of this argument, the Agency cites United States Dep't of the Air Force, Ogden Air Logistics Command, Hill Air Force Base, Utah, 61 FLRA 648 (2006) and United States Dep't of Veterans Affairs Med. Ctr., Northampton, Mass., 53 FLRA 1743 (1998). Additionally, the Agency claims that even if the award meets the requirements of prong I, it fails to meet the requirements of prong II because the Arbitrator conducted an independent evaluation of the grievant, substituting his judgment for that of the Agency.

B.     Union's Opposition

      The Union acknowledges the Arbitrator's error confusing the names of the supervisors, but argues that the error was not central to the Arbitrator's ultimate conclusion that the grievant was not rated fairly and equitably. Additionally, the Union asserts that the [ v63 p163 ] Agency's regulations permit supervisors to discuss employee ratings.

      The Union disputes the Agency's claim that the award is incomplete, ambiguous or contradictory because the Arbitrator did not state which law or provision of the parties' agreement was violated. In this regard, the Union asserts that the Arbitrator's conclusion reflects the language of Articles 18.2 and 20.3 of the parties' agreement which were presented to him at the hearing. [n3] 

      The Union also disputes the Agency's argument that the award is contrary to law because it fails to meet the two-prong test in BEP. Regarding prong I, the Union asserts that, although the Arbitrator did not specify which contract provision he found to be violated, the parties' agreement was presented to him at the hearing and the relevant provisions of the agreement were brought to his attention in the Union's post-hearing brief. See Opposition at 8. The Union argues that the Arbitrator's conclusion that the grievant was neither rated fairly, or accurately, nor treated equitably, in accordance with the parties' CBA, reflects the language of Articles 18.2 and 20.3 of the parties' agreement. See id. at 6. Regarding prong II, the Union argues that arbitrators are not required to explain their findings and conclusions.

V.     Analysis and Conclusions

A.     The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.

      The Agency claims, and the Union does not dispute, that the Arbitrator erred when he confused the names of the first and second line supervisors. Nevertheless, the Agency has not shown that this confusion affected the Arbitrator's conclusion that the grievant was not rated fairly. In this regard, the Arbitrator's factual findings show that, regardless of the name confusion, the Arbitrator's determination -- that the grievant was not rated fairly and equitably in accordance with the terms of the parties' CBA -- would have remained the same. Therefore, the Agency has provided no basis to find that the Arbitrator's confusion, in this regard, was material to the outcome of the award. See id.

      The Agency also disputes the Arbitrator's findings that it was inappropriate for the supervisors to discuss the grievant's rating, and that the supervisor failed to inform the grievant that she was performing at less than a successful level. However, these matters were disputed at arbitration and, therefore, do not provide a basis for finding the award deficient. See id. at 42. Based on the foregoing, we deny the Agency's exception.

B.     The award is not incomplete, ambiguous, or contradictory.

      The Authority will find an award deficient when it is incomplete, ambiguous, or so contradictory as to make implementation of the award impossible. See United States Dep't of Labor, Mine Safety and Health Admin., Southeastern Dist., 40 FLRA 937, 943 (1991). In order for an award to be found deficient on this ground, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award are too unclear or uncertain. See United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057, 1074 (2001). The Agency contends that the award is deficient on this ground because the Arbitrator failed to state which law or contract provision of the parties' agreement was violated. Here, although the Arbitrator failed to state which law or contract provision of the parties' agreement was violated, the award is clear in that it requires that the grievant's rating be changed to successful. As such, the Agency has failed to show that implementation of the award is impossible because the meaning and effect of the award are too unclear or uncertain. See, e.g., United States Dep't of Veterans Affairs, Gulf Coast Veterans Health Care Sys., Biloxi, Miss., 57 FLRA 77, 79 (2001) (award not deficient because the record did not support a conclusion that implementation of the award was impossible). Therefore, we deny this exception. [ v63 p164 ]

C. The award is not contrary to law.

      The Agency argues that the award violates management's rights to assign work under § 7106(a)(2)(B) of the Statute because it fails to specify what law or provision of the parties' agreement was violated and because the Arbitrator conducted an independent appraisal of the grievant, rather than determining "how the Agency would have rated the [e]mployee." Exceptions at 9. In support of its claim, the Agency cites United States Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP).

      Under 5 C.F.R. § 2429.5, an issue that could have been but was not presented to an arbitrator will not be considered by the Authority. See United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). We note in this regard that it was the Agency that proposed the issue that was addressed by the Arbitrator. See Award at 2; see also Exceptions at 4. In this manner, the Agency authorized the Arbitrator to decide whether the grievant "[w]as . . . rated fairly, accurately and equitably and in accordance with the applicable law and the collective bargaining agreement[.]" Award at 2. The proposed issue does not require the Arbitrator to articulate a specific violation of law or what section of the parties' agreement was violated. Thus, the Agency may not raise in its exception that the Arbitrator failed to specify the section of the collective bargaining agreement that was violated. Moreover, we note that in its post-hearing brief, the Agency cites to Article 18 of the parties' agreement -- the relevant contract provision -- requiring fair, equitable, and objective application of performance standards. See Agency's Post-Hearing Brief at 5. Accordingly, the Agency may not now argue that the award is deficient because the "[a]ward does not list a specific violation of law or contract provision[.]" Exceptions at 8. To the contrary, the Arbitrator addressed and resolved the very issue that was proposed. [n4]  Consequently, we dismiss this exception.

VI.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 63 FLRA No. 63 - Authority's Decision

   The Agency is a Department of Defense (DOD) component.


Footnote # 2 for 63 FLRA No. 63 - Authority's Decision

   As we dismissed the Agency's exception regarding the TAPES, we will not consider the Agency's reference to the TAPES in the discussion of the non