The Agency investigated a workplace dispute involving the grievant, and concluded that the grievant demonstrated “a pervasive pattern of inappropriate behavior.”^[1] Accordingly, the Agency issued a “Notice of Proposed [Five]‑Day Suspension” (notice) to the grievant.^[2] The notice included various memoranda, emails, and affidavits documenting allegations made by the grievant’s coworkers, and it informed the grievant of his right to reply. The Union filed a response denying the allegations in the notice, but the grievant did not separately reply, even when the Agency granted the grievant multiple extensions of the reply period.^[3] 

 

                The Agency proceeded to issue a “Decision on Proposed [Five]-Day Suspension,” suspending the grievant for five days for “[i]nappropriate [b]ehavior” and “[f]ailure to [f]ollow [s]upervisory [i]nstruction.”^[4] The Union filed a grievance alleging that the suspension was not for “just cause” and was untimely.^[5] The parties then submitted the grievance to expedited arbitration.

 

                In his award, the Arbitrator discussed the two charges underlying the suspension. Regarding the charge of “[i]nappropriate [b]ehavior,”^[6] the Arbitrator found that there were “numerous . . . statements . . . in the record for which there [was] no direct denial by the grievant as to their truth,”^[7] and that the incidents referenced in these statements were “sufficient . . . to support the charge.”^[8] 

 

                Regarding the charge of “[f]ailure to [f]ollow [s]upervisory [i]nstructions,” the Arbitrator found that the charge was based on a single allegation, and that “[t]he record contain[ed] no denial or explanation by the grievant of the facts as stated in the charge.”^[9] Accordingly, the Arbitrator found that the record supported the charge.

 

                In making these findings, the Arbitrator noted the Union’s claims that the statements that the Agency relied on “lacked credibility,” and that “the grievant was not interviewed about the allegations.”^[10] The Arbitrator found that the statements that the Agency relied on “were presented to the grievant for his inspection when the         . . . notice . . . issued[,] and he was notified in that notice, and later, that he could make a reply.”^[11] The Arbitrator further found that, “[a]lthough the Union challenged the credibility of the [coworkers] who gave statements” in its response to the notice, “the record contain[ed] no direct denial or explanation by [the grievant] regarding the matters relied on” by the Agency in deciding to suspend the grievant.^[12] 

 

                Based on the foregoing, the Arbitrator found that the suspension was for “just cause as will promote the efficiency of the service.”^[13] He also found “no support in the record that the suspension was motivated by the grievant’s Union activity or was defective because of timeliness.”^[14] Accordingly, he denied the grievance. 

 

 

                The Union argues that the Arbitrator erred by failing to address whether the suspension violated the grievant’s rights as a whistleblower under 5 U.S.C. § 2302(b)(9)(A).^[15] The Union also argues that the Arbitrator erred by failing to“explain why [the] Agency’s actions should not be scrutinized within the legal context of the . . . protection against retaliation for [U]nion activity” set forth in Article 47, Section 6(c) of the parties’ agreement.^[16] Further, the Union contends that “[t]he Arbitrator’s decision . . . ignored the basic tenets of due process required in a disciplinary action against [a] federal employee” such as the grievant.^[17] In this connection, the Union claims that the Arbitrator “erred by failing to recognize the grievant’s [constitutionally protected] property interest in his government position,”^[18] and did not address what process was due the grievant, which the Union claims is “spelled out in the parties’ . . . agreement.”^[19] The Union also contends that the Arbitrator violated the grievant’s      due-process rights by addressing certain incidents that “were not listed in the specification of charges in the letter of proposed suspension.”^[20] Moreover, the Union asserts that the Arbitrator misallocated the burden of proof in his award.^[21]

                The Agency argues that the Union is making arguments that it should have made, but did not make, at arbitration.^[22] Specifically, the Agency asserts that the Union is making “new due[-]process arguments, whistleblowing defenses,” and arguments regarding the “misallocation of the burden of proof.”^[23]

                Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any arguments that could have been, but were not, presented to the arbitrator.^[24] However, where it is not clear that a party could have raised its claims before the arbitrator, the Authority has considered those claims.^[25]

 

                As noted above, the Union also makes several constitutional-due-process arguments. In considering exceptions alleging denials of due process, the Authority has distinguished between an agency’s pre‑decisional actions in the disciplinary process and an arbitrator’s conduct during a post‑suspension arbitration proceeding.^[27] To the extent that the Union’s due‑process claims challenge the Agency’s actions in connection with the grievant’s suspension, the Union could have raised these claims before the Arbitrator. But nothing in the record indicates that the Union did so. As a result, §§ 2425.4(c) and 2429.5 of the Authority’s Regulations bar the Union from making these claims, and we dismiss the portions of the exceptions that raise these claims.^[28]

 

 

                Section 2425.6 of the Authority’s Regulations specifically enumerates the grounds that the Authority currently recognizes for reviewing arbitration awards.^[30] In addition, the Regulations provide that if exceptions argue that an 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.”^[31]

 

                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” the grounds listed in § 2425.6(a)-(c), or “otherwise fails to demonstrate a legally recognized basis for setting aside the award.”^[32] Thus, an exception that does not raise a recognized ground is subject to dismissal under the Regulations.^[33]

 

                The Union argues that the Arbitrator relied upon evidence that was “not germane to the proposed suspension,”^[34] and that he “ignored” or “failed to address” evidence and arguments that the Union offered.^[35] These arguments do not raise grounds currently recognized by the Authority for reviewing awards.^[36] And the Union does not cite legal authority to support any ground not currently recognized by the Authority. Accordingly, we dismiss these exceptions.^[37]

 

 

The Union argues that the award is contrary to law. When an exception involves an award’s consistency with law, the Authority reviews any question of law de novo.^[38] In conducting de novo review, the Authority defers to the arbitrator’s underlying factual findings.^[39] Exceptions based on misunderstandings of an arbitrator’s award do not demonstrate that the award is contrary to law.^[40]

 

 

                As discussed above, the Union argues that the Arbitrator violated the grievant’s constitutional-due-process rights.^[41] For example, the Union claims that the Arbitrator failed “to recognize the grievant’s [constitutionally protected] property interest in his government position,”^[42] and violated the grievant’s     due-process rights by addressing certain incidents that “were not listed in the specification of charges in the letter of proposed suspension.”^[43] 

 

                In considering exceptions alleging denials of due process, the Authority has distinguished the constitutionally required protections that apply to an agency’s pre-decisional actions in the disciplinary process from the protections that apply to an arbitrator’s conduct during a post-suspension arbitration proceeding.^[44] While recognizing that constitutional protections exist for the interests the Union cites, such as the grievant’s property interest in his government employment, the Authority has held that such protections only apply in a pre-decisional context. In contrast, the Authority has held that federal employees who are suspended for fourteen days or less do not have a constitutional right to particular post‑suspension         due-process protections that arbitrators must observe in conducting arbitration proceedings.^[45] Consistent with these principles, we reject the Union’s arguments that the Arbitrator violated the grievant’s constitutional‑due-process rights.   

 

 

                The Union argues that the Arbitrator erred, as a matter of law, by “plac[ing] the burden of proof on the [U]nion, requiring it to establish that the grievant did not engage in misconduct.”^[46] In this regard, the Union cites the Arbitrator’s statements that “the record contain[ed] no direct denial or explanation by [the grievant] regarding the matters relied on” by the Agency in deciding to suspend the grievant.^[47]

 

                Although the Arbitrator noted the grievant’s failure to address the Agency’s allegations, the Arbitrator did not reassign the burden of proof by requiring the grievant to disprove the allegations. So the Union’s exception is based on a misinterpretation of the award. As such, the exception provides no basis for finding the award deficient.^[48] 

 

 

 

 

 

 

 

 

 

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