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The decision of the Authority follows:
52 FLRA No. 19
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
September 26, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Horace W. Rice filed by the Union under section 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 denied a grievance seeking to raise the annual performance appraisals of two employees. For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitration Award
For the period January 1, 1994, through September 24, 1994, the two grievants, Surveying Technicians, received an overall performance rating of "Successful Level 3." During the same period, the grievants appealed an adverse action to the Merit Systems Protection Board.
The grievants asserted that they should have received the higher rating that they claimed they received on their midyear performance reviews. The Agency lost the documents containing midyear reviews of the Surveying Technicians, including those of the grievants.
The Arbitrator framed the issue as whether the grievants "received a proper performance evaluation consistent with the language of Article 17.1 and 17.2 of the collective bargaining agreement?" Award at 3. Article 17 of the parties' collective bargaining agreement provides, among other things, that certain procedures are to be followed in conducting performance appraisals, including the requirements that supervisors provide an "objective" evaluation and a "6 months" review to suggest ways for an employee to improve work quality. Id. at 4.
Stating that this case concerned the interpretation of the parties' agreement, the Arbitrator concluded that, based on the evidence, the grievants received "a proper performance evaluation consistent with the language in the [a]greement." Id. at 28. He found that the ratings were not based on "reprisal" for the exercise of an appeal right granted by law, rule or regulation. Id. at 25. Thus, he found that 5 U.S.C. § 2302(b)(9), cited by the Union, was not applicable to this case.(*) He further found that the ratings were not based on personal animus harbored by any manager toward the grievants. In this regard, he rejected the Union's argument that personal animus had motivated management to intentionally destroy the documents containing the grievants' midterm review to prevent the disclosure of their contents. He stated that although the Agency was obligated to secure those documents, there was no compelling evidence that its failure to do so "was done intentionally or in bad faith." Id. at 16. Therefore, he denied the grievance.
A. Union's Contentions
The Union contends that the Arbitrator "missed the point of the issues involved[.]" Exceptions at 1. The Union argues that the Arbitrator ignored evidence that the ratings were based on retaliation for the exercise of an appeal right in violation of 5 U.S.C. § 2302(b)(9). The Union also asserts that the Arbitrator did not consider evidence or properly judge the testimony of certain witnesses that management harbored personal animus toward the grievants and intentionally destroyed documents containing the grievants' midterm reviews to prevent the disclosure of their contents.
B. Agency's Opposition
The Agency contends that the Union failed to properly serve its exception by certified mail or in person as required by section 2429.27(b) of the Authority's Regulations. Specifically, the Agency claims that it received a copy of the exception by regular mail. On the merits, the Agency maintains that the Union has failed to establish that the Arbitrator erred in dismissing the grievance.
IV. Analysis and Conclusions
A. Preliminary Matter
It is clear that the Agency timely received the Union's exception, and the Agency does not claim, and there is no basis on which to conclude, that the Agency was prejudiced by the manner in which the Union's exception was served. Therefore, we will consider the Union's exception. See Federal Employees Metal Trades Council, Local 127 and U.S. Department of the Navy, Mare Island Naval Shipyard, Mare Island, California, 51 FLRA 1259, 1261 (1996); U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2144, 39 FLRA 269, 272 (1991).
B. The Award Is Not Contrary to Law
Because the Union's exceptions challenge the award's consistency with 5 U.S.C. § 2302(b)(9), we must review the questions of law raised by the award and the parties' positions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).
To prevail on a contention of illegal reprisal under 5 U.S.C. § 2302(b)(9), a grievant has the burden of showing that the agency took action because of protected activity. See Keenan v. U.S. Postal Service, 62 MSPR 307, 309 n.2 (1994). In this case, the Arbitrator rejected the grievants' claim before him that the ratings were based on retaliation in violation of 5 U.S.C. § 2302(b)(9) on the grounds that the claim was not supported by the evidence. Based on this determination, the grievants did not meet their burden under 5 U.S.C. § 2302(b)(9). Accordingly, as the Union has failed to establish that the award is deficient in this respect, this exception is denied.
C. The Award Is Not Based On a Nonfact
We also construe the Union's arguments disputing the Arbitrator's findings that the grievants' ratings were not based on personal animus or retaliation in violation of 5 U.S.C. § 2302(b)(9) as arguments that the award is based on nonfact. To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995).
The Union has not established that the Arbitrator's findings regarding the absence of personal animus or retaliation in violation of 5 U.S.C. § 2302(b)(9) constitutes a "fact" underlying the award. Those determinations resulted from his evaluation of the evidence presented and his interpretation of the parties' agreement and a provision of law and, as such, cannot be challenged as a nonfact. See American Federation of Government Employees, Local 1941 and U.S. Department of the Army, U.S. Army Chemical and Military Police Centers and Fort McClellan, Fort McClellan Alabama, 51 FLRA 998, 1000 (1996); American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 398 (1995) (an interpretation of the parties' agreement cannot be challenged as nonfact); U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 605 (1991) (an interpretation of law cannot be challenged as nonfact). Accordingly, we find that the Union has not established that the Arbitrator relied on a nonfact and, therefore, has not demonstrated that the award is deficient on this ground.
D. The Union Received a Fair Hearing
We construe the Union's arguments that the Arbitrator ignored certain evidence and failed to properly judge the testimony of witnesses as a claim that the Arbitrator failed to conduct a fair hearing.
The Authority will find an award deficient when it determines that an arbitrator's refusal "to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole." American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).
The Union has not established that the Arbitrator refused to hear or consider pertinent or material evidence, or took any actions in conducting the proceeding which prejudiced the Union so as to affect the fairness of the proceedings as a whole. Accordingly, we deny this exception. See id.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ 5 U.S.C. § 2302 provides in pertinent part:
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority--
. . . .
(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of--
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;