37:1071(89)AR - - Air Force, Air Logistics Center, McClellan AFB, Sacramento, CA and IFPTE Local 330 - - 1990 FLRAdec AR - - v37 p1071
[ v37 p1071 ]
The decision of the Authority follows:
37 FLRA No. 89
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR LOGISTICS CENTER
MCCLELLAN AIR FORCE BASE
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS
October 19, 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 Thomas Angelo filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator sustained, in part, the grievance over the grievant's annual performance appraisal. Pursuant to the parties' stipulation, the Arbitrator remanded the dispute to the parties for further discussion.
For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, a GS-11 electrical engineer, operates under a performance plan containing seven elements, six of which are critical elements. For the appraisal period July 1, 1987, through June 30, 1988, the grievant's performance was rated as failing to meet the satisfactory standard for four elements. Specific "allegations" of unacceptable performance accompanied the Agency's rating on each element. Award at 4-5. A grievance was filed over the evaluation and, when it was not resolved, it was submitted to arbitration.
As the parties were unable to agree on the issues to be resolved in arbitration, the Arbitrator framed the issues as:
1. Whether the Grievant's Critical Elements and Performance Standards were properly established and applied; and
2. If so, whether the Grievant's performance appraisal for the period July 1, 1987 through June 30, 1988, was fair and in compliance with applicable law, rules, regulations and the Collective Bargaining Agreement.
Id. at 3.
As relevant here, the Arbitrator first determined that performance element 1, and its accompanying standard, (*)complied with applicable Air Force regulations and was defined "in sufficiently measurable terms to inform an employee of what is expected for satisfactory performance." Id. at 16. Accordingly, the Arbitrator rejected the Union's claim that the standard could not be applied to the grievant.
The Arbitrator then determined that, with respect to one of the instances of alleged unacceptable performance under element 1 (the "Reimbursable Files" allegation), he was unable to sustain the Agency's position because the record did not demonstrate whether, in fact, the grievant failed properly to perform his assignment. With respect to the other alleged instance of unacceptable performance (the "MWR letter" allegation), however, the Arbitrator determined that the grievant's performance reflected "a superficial approach which permits delay and errors in the transmission of information." Id. at 21. Accordingly, the Arbitrator sustained this allegation.
The Agency specified two allegations of unacceptable performance for element 3 also. That element, and the applicable standard, provide:
Element #3: Prepares drawings, specifications and all other documents required for a complete design package to construct projects by contract.
Standard: Projects shall be prepared to meet design schedule 95% of the time and change orders to any project shall not exceed four to six percent of the construction cost as a result of design errors.
Id. at 22. The Arbitrator found, with respect to the "Building One" allegation, that the Agency did not demonstrate that the grievant's errors would have resulted in a change order exceeding 6 percent. Id. at 27. As a result, the Arbitrator did not sustain this allegation. The Arbitrator also found, however, that the grievant had engaged in "refusal by delay" with respect to the "Capehart Project," and that the grievant's error necessitated a 100 percent change order. Id. at 30. The Arbitrator, therefore, sustained this allegation.
Next, the Arbitrator examined the two allegations of unacceptable performance with respect to element 4. That element and performance standard provide:
Element #4: Manages assigned in-house and A-E workload.
Standard: A/E reviews shall be completed within the times set forth by the contract, and all projects shall be completed to meet design schedules 95% of the time, and change orders shall not exceed four to six percent of the construction cost as a result of design errors.
Id. at 31. The Arbitrator sustained the allegation concerning the "Mat V" design project because the Arbitrator found that more than 6 percent of the total cost of the project was necessary to accommodate change orders resulting from the grievant's failure to perform his assignment properly. Id. at 35. The Arbitrator did not sustain the "Building 243" allegation because he found insufficient evidence that the grievant's errors would have resulted in change orders in excess of 6 percent of the project's cost. Id. at 36.
Finally, the Arbitrator found that the grievant's performance met the performance standard for element 7, concerning the maintenance of "system(s) brochures and other records" and response "to changes as required." Id. at 37. As such, the Arbitrator did not sustain the Agency's allegation with respect to this element.
The Arbitrator noted the parties' stipulation that "should the grievance be sustained in whole or in part it was to be remanded for further discussion." Id. at 42. Therefore, as he had sustained the grievance in part, he remanded the matter to the parties. The Arbitrator stated that he would retain jurisdiction to issue a supplemental award if he was requested to do so by either party.
III. The Parties' Positions
A. The Union's Exceptions
The Union disputes the Arbitrator's findings with respect to the "MWR" project, the "MAT-V" design project, and the "Capehart" project. Exceptions at 2. According to the Union, the Arbitrator "made his decision based on inappropriate testimony and evidence, on distorted and reversed testimony and evidence, and on illegal procedures." Id.
With respect to the "MWR" project, the Union claims that the Arbitrator ignored facts and that, in addition, the allegation was "illegally arbitrated" because the Agency had withdrawn a record of counseling concerning this project and failed to demonstrate that the grievant's work was unsatisfactory. Id. at 3. As for the "MAT-V" project, the Union asserts that the Arbitrator ignored its evidence that the Agency had "fabricated" this issue. Id. at 4. The Union also maintains that the Arbitrator failed to take into account the fact that the grievant was not granted an "opportunity to improve" period with respect to his performance on this project. Finally, the Union argues that the Arbitrator's findings concerning the "Capehart" project constitute "a subversion of the interpretation" of the grievant's performance standard. Id. at 6. The Union asserts that because the Agency did not notify the grievant that his work was unsatisfactory on this project, the Agency "abrogated the grievant's rights." Id.
B. The Agency's Opposition
The Agency asserts that the Union's exceptions constitute mere disagreement with the Arbitrator's findings of fact and decision and, as such, provide no basis for finding the award deficient.
IV. Analysis and Conclusions
The Union has not demonstrated that the Arbitrator's award is deficient on any of the grounds established in section 7122 of the Statute.
The Union's assertions that the award is deficient because the Arbitrator ignored facts, or relied on improper evidence or testimony, provide no basis for finding the award deficient. Instead, these contentions constitute mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony. See, for example, Naval Ordnance Station of Louisville, Kentucky and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 830, 34 FLRA 687, 689 (1990).
Moreover, even if we construe the Union's assertions as allegations that the award is based on nonfacts, we conclude that the assertions do not demonstrate that the award is deficient. In order for an award to be found deficient on the ground that it is based on a nonfact, the party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259, 1265 (1990). Here, the Union has not established that there were any "central facts" underlying the award and, in addition, has not demonstrated that the Arbitrator's factual findings were clearly erroneous. The Union has not, therefore, demonstrated that the award is based on nonfacts.
Finally, the Union's contentions regarding the Agency's alleged violations of the grievant's rights, as well as the Arbitrator's alleged misinterpretation of the grievant's performance standards, do not establish that the award is deficient. The Union has not d