43:0131(13)AR - - EEOC, Washington, DC and AFGE, National Council of EEOC Locals, Local 216 - - 1991 FLRAdec AR - - v43 p131



[ v43 p131 ]
43:0131(13)AR
The decision of the Authority follows:


43 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF EEOC LOCALS

LOCAL 216

(Union)

0-AR-2101

DECISION

November 19, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Agency 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 Union filed an opposition to the Agency's exceptions.

A grievance was filed challenging the grievant's performance ratings. The Arbitrator sustained the grievance in part and ordered the Agency to change the grievant's rating for Critical Element III from Marginal to Fully Successful and to raise the grievant's overall performance rating from Marginal to Fully Successful.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant is a GS-12 Investigator at the Agency's Philadelphia District Office. The grievant has served in various Union positions since 1984, including First Vice President of the Union. In 1988, the grievant was elected President of the Union.

On July 14, 1989, Eugene Weaver, the grievant's supervisor from November 1987 to June 23, 1989, issued the grievant a mid-year progress review which noted problems with the grievant's performance on Critical Element II, but which stated that "[a]t this point in the rating period your overall performance is in the fully successful area." Arbitrator's Award at 2.

For the appraisal period from February 13, 1989, to September 30, 1989, the grievant received a rating of Marginal for Critical Element I, a rating of Highly Effective for Critical Element II, and a rating of Marginal for Critical Element III. Pursuant to the guidelines for determining the overall performance rating, the grievant received an overall rating of Marginal because "[m]ore than one critical element [was] rated 'Marginal.'" Id. at 4. The grievant's supervisor from June 26, 1989, through the remainder of the appraisal period, Howard Gurmankin, attached a narrative to the grievant's appraisal explaining the individual ratings.

In support of a Marginal rating for Critical Element I (Quality Case Development), Gurmankin's narrative cited: (1) examples of case submissions "contain[ing] substantive omissions or deficiencies"; (2) cases where the grievant used "inappropriate or ineffective investigative methods or techniques"; and (3) instances indicating that "inordinate supervisory input [was] sometimes required to ensure the completeness and thoroughness of work products which often lack clarity, conciseness and/or organization." Id. at 4, 5.

In support of a Highly Effective rating for Critical Element II (Operational Efficiency), the narrative stated in part that "several of [the grievant's] closures of potential 270-day old charges were due either to direct supervisory effort . . . or as the result of inordinately close supervision[.]" Id. at 6. The narrative stated further that "the grievant's meeting of case management goals was marginal at 87%, or 20 goals met out of 23 assigned." Id.

In support of a Marginal Rating for Critical Element III (Effective Working Relationships), the narrative cited three cases involving "extremely inappropriate handling of certain situations, based on the statements made by the grievant to charging party attorneys." Id. at 6-7. The narrative also cited instances where the grievant "became impatient with an uncooperative party" and on occasion "defer[red] her charge processing responsibility to the supervisor." Id. at 7. Gurmankin's narrative further stated that the grievant's processing of her caseload "does not manifest the ability to anticipate and deal with problems that would be particularly expected of a GS-12" and "at times [the grievant] prefer[s] to allow the supervisor to handle problem situations rather than taking the initiative [her]self." Id. Moreover, the narrative indicated that the grievant "frequently will not make a decision or recommendation on a case" and that, as a result, cases "will sit for long periods of time." Id. The narrative concluded that "inordinately close supervision has been needed to have [the grievant] process and resolve charges in [her] caseload." Id.

The Union filed a grievance challenging the grievant's performance ratings in each of the three Critical Elements. The parties were unable to resolve the grievance and the matter was submitted to arbitration. The parties stipulated to the following issue before the Arbitrator:

"Whether the evaluation for the appraisal period was in compliance with Article 22 of the Collective Bargaining Agreement (CBA) and was a fair, accurate and objective evaluation of job performance as required by Article 22 and the 'Investigator Guide for GPAR [General Performance Appraisal and Recognition System] Appraisals.' This includes retaliation as appropriate."

Id. at 2 (citation to footnote omitted).

The Arbitrator noted the Union's contentions that management: (1) applied subjective standards and illegal case management goals to the grievant; (2) applied the performance standards in violation of law, regulation, and the parties' agreement; (3) subjected the grievant to standards of performance not required of other employees; and (4) harassed and criticized the grievant's work because of her Union activities.

The Arbitrator found that: (1) the Union had not shown that management applied illegal case management goals to the grievant; (2) the lack of a summary rating by Weaver for the period that he supervised the grievant and the lack of a meeting with the grievant and Gurmankin to discuss the grievant's final appraisal do "not per se constitute harmful error in this case"; and (3) with respect to Critical Element II, the Union made no showing of disparate treatment in the application of the standard for 270-day old cases to the grievant. Id. at 9.

With respect to whether the grievant's ratings were fair, accurate and objective or whether the ratings were "issued in retaliation for her Union activities[,]" the Arbitrator found that the ratings for Critical Elements I and II were fair, accurate and objective. Id. at 10.

As to Critical Element III, however, the Arbitrator found that the grievant's rating of Marginal "was not fair, accurate and objective[.]" Id. at 24. The Arbitrator noted that the grievant was rated Marginal under the performance standards in Critical Element III for the following criteria: (1) anticipating problems, apprising the supervisor, and suggesting solutions; and (2) dealings with the public, other Government agencies, and co-workers.

First, with respect to the grievant's performance in anticipating problems, apprising the supervisor, and suggesting solutions, the Arbitrator found that neither Gurmankin nor Weaver discussed with the grievant her referral to the supervisor of phone calls and other work in certain cases. As these "asserted deficienc[ies]" were not discussed with the grievant during the rating period, the Arbitrator found there was "no basis to support [either] the characterization of 'frequently' deficient" in the narrative to this portion of the grievant's rating for Critical Element III or "the characterization of 'sometimes' used in the marginal standard for Critical Element III." Id. at 16. Further, the Arbitrator rejected the Agency's argument that deficiencies noted in the grievant's appraisal under the Quality Case Development Standard of Critical Element I should be considered in connection with the part of Critical Element III relating to whether an employee anticipates problems, apprises the supervisor, and suggests solutions. The Arbitrator stated that he would not consider the deficiencies noted in the appraisal's discussion of Critical Element I in connection with Critical Element III because his "arbitral charter is to review the rating official's rationale and examples in reaching his rating determination[.]" Id. at 18. Based on his review of the rating official's rationale for his rating on this portion of Critical Element III, the Arbitrator found that the grievant's rating on this portion of Critical Element III should have been Fully Successful.

Second, with respect to the grievant's dealings with the public, other Government agencies, and co-workers, the Arbitrator examined two instances cited by the Agency to support the grievant's Marginal rating for this portion of Critical Element III. In those cases, the Agency argued that, during an audit of all of the cases assigned to all investigators, "the grievant stated that the cases had not been closed because of comparable worth issues." Id. The Agency further argued that when the charging party's attorney in those cases requested an extension to reply to an employer action, "the grievant referred the attorney to the District Director." Id. at 19. With respect to whether the grievant referred the attorney in those cases to the District Director, the Arbitrator stated that he was "inclined to credit" management testimony that all employees had been informed of the policy against involving the District Director in an investigator's cases. Id.

However, as to the comparable worth questions, the Arbitrator found that although the two cases had been in the grievant's inventory for 6 years, "the record reflects that management had discussed the progress of the case[s] with the grievant only once" during the six-year period. Id. The Arbitrator noted that Weaver had approved the grievant's actions on the cases as late as June of 1989, and concluded that "supervision had acquiesced in the grievant's handling of the case[s.]" Id. at 19-20. The Arbitrator found that "[m]anagement cannot fairly hold the grievant accountable for case processing decisions made in a period prior to (and even during) the appraisal period which had been approved by her supervisor." Id. at 20. For that reason, the Arbitrator concluded that the grievant's performance in the two cases involving comparable worth questions "primarily reflects a lack of supervision[.]" Id.

The Arbitrator also examined an inappropriate statement allegedly made by the grievant to a charging party's attorney. The Arbitrator noted that there was conflicting testimony on whether the grievant actually made the statement and determined that he would "not render a finding on this matter[,]" except to state that

the circumstances surrounding the processing of this charge embody all that is awry in the relationship between [the grievant], as an Investigator and Local President, and District Office management.

Id. at 21.

Based on his review of all of Gurmankin's comments under Critical Element III, the Arbitrator found "unpersuasive the Agency's assertion that it is not possible to support a rating above Marginal for this critical element." Id. at 18. Moreover, the Arbitrator noted that for the grievant's 8-month appraisal period, "[f]ive of the months were evaluated Fully Successful in a progress review" completed by Weaver and considered by Gurmankin "as the summary rating." Id. at 20 and n.*. Although the progress review "reflected some problems under Critical Element II," the Arbitrator noted that "there was no indication of concern with the grievant's performance under the two other critical elements." Id. at 21.

The Arbitrator then examined "the grievant's high level of Union activity in 1989" and found that several of management's actions in attempting to deal with the grievant's performance "were taken as a summary response to the grievant's Union activity[.]" Id. at 22. The Arbitrator noted that, in connection with a review of office production standards on April 28, 1989, Gurmankin's immediate supervisor "cite[d] the grievant's use of Union time as a factor in her unit's productivity shortfall." Id. The Arbitrator also noted that Gurmankin had denied the grievant's requests for official time because "he determined that her agreed[-]upon case management goals should take precedence over her Union business." Id. at 20. Further, the Arbitrator found that, although Gurmankin had not reviewed the grievant's cases with Weaver, Gurmankin required the grievant to discuss her caseload weekly rather than monthly because "of the difficulty in projecting the amount of official time she would require for Union business[.]" Id. at 22. Finally, the Arbitrator noted that, in violation of the contract, Gurmankin failed to discuss an acceptable level of performance with the grievant at the outset of his assignment as the grievant's supervisor and at the conclusion of the appraisal period.

Based on all of the above findings, the Arbitrator found that the grievant's rating of Marginal for Critical Element III "was not fair, accurate and objective" and that "it should be changed to Fully Successful." Id. at 24. The Arbitrator noted that with this change, more than one half of the grievant's ratings for critical elements are Fully Successful or higher and no more than one rating is Marginal. The Arbitrator concluded that "the grievant's overall performance rating qualifies for the Fully Successful level as described in the Investigator GPAR." Id. Accordingly, the Arbitrator directed the Agency to change the grievant's overall performance rating for Fiscal Year (FY) 1989 to Fully Successful and to change all Agency records to reflect the new rating.

III. Positions of the Parties

A. The Agency

The Agency filed two exceptions to the Arbitrator's award. First, the Agency contends that the award is contrary to law because the grievant's rating cannot be set aside on the basis of the Arbitrator's finding of retaliation. The Agency notes that under Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I), an arbitrator is without authority to set aside a performance rating unless the arbitrator

first finds that the [a]gency has not properly applied the established performance elements and standards to the [g]rievant's performance or that the [a]gency has applied the elements and standards in violation of law, regulation or the parties' [collective bargaining agreement].

Agency's Exceptions at 9.

According to the Agency, the Arbitrator's finding of retaliation "is not legally sufficient to set aside the rating received by the [g]rievant" because the Arbitrator did not find that there was "a causal connection between the [grievant's] protected activity and the adverse determination" by the Agency or that "a retaliatory motive on the part of Gurmankin was a significant or substantial factor in the [grievant's] performance rating." Id. at 6, 7, citing Ireland v. Department of Health and Human Services, Social Security Administration, 34 MSPR 614 (1987) (HHS).

The Agency also challenges the grounds used by the Arbitrator to support his finding of retaliation. The Agency argues that the Arbitrator found that the procedural irregularities noted in connection with the manner in which the Agency evaluated the grievant's performance were "harmless." Id. at 8. Moreover, the Agency argues that the Arbitrator's finding that there was a change in the manner in which the Agency implemented the grievant's standards is "clearly a non-fact" because "[t]here has never been any dispute between the parties that the performance standards which were put in place in February of FY 1989 remained in effect for the entire performance period." Id. at 8 n.4.

The Agency further argues that the Arbitrator improperly relied on the method chosen by the Agency to closely supervise the grievant's performance as a ground for his finding of retaliation. According to the Agency, the "Arbitrator's belief that there might have been other (even better) ways for the Agency to address [the] [g]rievant's performance" than subjecting the grievant to weekly meetings "cannot properly provide a basis for setting aside the [g]rievant's rating, so long as the Agency acted lawfully." Id. at 9.

In any event, the Agency contends that "as a matter of law, the Arbitrator was precluded from finding that the Agency's decision to require the [g]rievant to attend weekly meetings with her supervisor constitutes evidence of retaliation." Id. The Agency states that this issue was addressed in a prior unfair labor practice charge filed by the grievant alleging that the "agency retaliated against her by 'closely monitoring [her] conduct and performance as a result of [her] participation'" in Union activity. Id. The Agency notes that after the charge was filed, the Authority "approved [the grievant's] request to withdraw the charge." Id. at 10. The Agency argues that "[u]nder the doctrine of collateral estoppel, the Arbitrator was bound by the Authority's determination regarding the Agency's weekly meetings with her supervisor" because collateral estoppel "precludes re-litigation of issues of law and issues of fact if these issues were conclusively determined in a prior action involving the same parties." Id., citing U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 38 FLRA 1256 (1991), petition for review filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-4153 (5th Cir. Feb. 28, 1991). As "the Authority found no merit to [the] [g]rievant's allegation that the weekly meetings were retaliatory[,]" the Agency maintains that "the Arbitrator had no authority to render a finding to the contrary." Id.

In its second exception, the Agency argues that, under U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (SSA II), the Arbitrator had no authority to require the Agency to raise the grievant's rating. The Agency contends that the Arbitrator "made no findings[,]" and "there is no evidence in the record[,]" to support the Arbitrator's conclusion that the grievant should have been rated at the Fully Successful level. Id. at 11. The Agency asserts that the Arbitrator "makes no affirmative finding that the [g]rievant actually performed at the Fully Successful level while under Gurmankin's supervision." Id. at 12. The Agency disputes the Arbitrator's conclusion that the grievant performed at the Fully Successful level for over half of the rating period and argues that the Arbitrator's finding "constitutes a non-fact" because Weaver stated in his progress review that the grievant's performance was "not [] Fully Successful, but [was] 'in the Fully Successful area.'" Id. at 13 (emphasis in original). Moreover, the Agency maintains that "the Arbitrator cannot reasonably rely on Weaver's summary observations as a basis for concluding that the [g]rievant actually performed at the Fully Successful level in Element III" because "Weaver was relieved of his supervisory duties" when "the Director had concerns regarding the quality of Weaver's performance as a supervisor." Id. at 13-14.

As to the Arbitrator's findings on the portion of Critical Element III relating to dealings with the public, other Government agencies, and co-workers, the Agency argues that the Arbitrator exceeded his authority in changing the grievant's rating. The Agency notes that the Arbitrator decided "not to render a finding" on whether the grievant made an inappropriate statement to a charging party's attorney. Id. at 16. The Agency maintains that the Arbitrator's failure to render a finding on a matter with "obvious relevance to Element III" constitutes "an admission that he did not consider all of the relevant evidence when he assessed the appropriateness" of the grievant's rating. Id. at 15, 16.

As to the Arbitrator's findings on the portion of Critical Element III relating to anticipating problems, apprising the supervisor, and suggesting solutions, the Agency states that the "performance indicators under [that] standard of Element III significantly overlap with the standards found under Element I[.]" Id. at 16. Therefore, the Agency argues that the Arbitrator "should have considered" the grievant's handling of the cases mentioned in the narrative with regard to Critical Element I when he was evaluating the grievant's performance under Critical Element III. Id. at 17. The Agency notes the Arbitrator's statement that the Arbitrator did not consider the cases mentioned in regard to Critical Element I because "Gurmankin had failed to address [the] [g]rievant's handling of the aforementioned cases under Element III[.]" Id. at 18. However, the Agency maintains that the Arbitrator "substituted the Agency's rating with his own . . . without considering evidence which was clearly relevant to [the] [g]rievant's performance under Element III." Id.

B. The Union

The Union maintains that, contrary to the Agency's assertion, the Arbitrator "made specific factual findings on each critical element and found that on critical element III, the Agency had no evidence to support the rating." Union's Opposition at 3. The Union notes that, consistent with Authority requirements, the Arbitrator found that the parties' agreement was violated and that "the violations warranted a change in the rating of critical element III." Id. Accordingly, the Union contends that the Agency's exceptions "are merely disagreement with the factual determinations of the [A]rbitrator" and provide no basis for finding the award deficient. Id.

With respect to the Agency's argument on collateral estoppel, the Union states that the parties' agreement requires a party to raise questions of grievability or arbitrability "by Step 3 of the negotiated grievance process or they are waived." Id. at 2. As the Agency never raised an issue as to collateral estoppel, the Union argues that the Agency is precluded by the collective bargaining agreement from raising this matter on appeal.

IV. Analysis and Conclusions

In SSA I, the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. Subsequently, in SSA II, the Authority described SSA I as "establish[ing] a two-prong test":

First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order management to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.

SSA II, 34 FLRA at 328.

A. The Award Satisfies the First Prong of the Test Established in SSA I

The Arbitrator noted that Article 22 of the parties' agreement requires that performance appraisals be "fair, accurate and objective" and concluded that the grievant's rating of Marginal for Critical Element III "was not fair, accurate and objective[.]" Arbitrator's Award at 2, 24. In reaching this conclusion, the Arbitrator examined the grounds set forth in Gurmankin's narrative to support the Marginal rating. With respect to the portion of Critical Element III on anticipating problems, apprising the supervisor and suggesting solutions, the Arbitrator found that the supervisors never discussed with the grievant the deficiencies noted in the narrative. Therefore, the Arbitrator found no basis in the narrative to support the grievant's rating of Marginal on that portion of Critical Element III.

With respect to the portion of Critical Element III on dealings with the public, other Government agencies, and co-workers, the Arbitrator found that "supervision had acquiesced in the grievant's handling of the case[s]" cited in the narrative as deficient and that, therefore, "[m]anagement cannot fairly hold the grievant accountable for case processing decisions . . . which had been approved by her supervisor." Arbitrator's Award at 20.

The Arbitrator's conclusion that the grievant's rating of Marginal for Critical Element III "was not fair, accurate and objective" constitutes a determination that the Agency applied the established standards in violation of Article 22 of the parties' collective bargaining agreement. Id. at 24. An arbitrator may cancel a performance rating if the arbitrator determines that "management has not applied the established standards or has applied them in violation of law, regulation, or a provision" in a collective bargaining agreement. SSA II, 34 FLRA at 328. As the Arbitrator found that management applied the performance standard for Critical Element III in violation of the parties' collective bargaining agreement, we conclude that the Arbitrator properly cancelled the grievant's Marginal rating for Critical Element III. See U.S. Department of Health and Human Services, Social Security Administration, Mid-America Program Service Center, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 38 FLRA 544 (1990).

We note the Agency's argument that, under SSA I, the grievant's rating cannot be set aside on the basis of retaliation because the Arbitrator's finding of retaliation "is not legally sufficient to set aside the rating[.]" Agency's Exceptions at 6, citing HHS. For the reasons stated below, this argument provides no basis for finding the award deficient.

In HHS, the Merit Systems Protection Board discussed the standard for finding that an agency retaliated against an employee in violation of law, specifically, 5 U.S.C. § 2302(b)(9). However, based on the Arbitrator's findings noted above, we found that the award may be sustained under the first prong of the test set forth in SSA I because the Arbitrator found that management applied the performance standard for Critical Element III in violation of Article 22 of the parties' collective bargaining agreement. As the award finds that the Agency applied the established performance standard in violation of the parties' collective bargaining agreement, as opposed to finding that the Agency applied the standard in violation of 5 U.S.C. § 2302 or any other law, we conclude that the Agency's argument that the Arbitrator's finding of retaliation "is not legally sufficient" under HHS is misplaced.

We also note that the Agency: (1) challenges the various grounds used by the Arbitrator to support his finding of retaliation; and (2) argues that, with respect to one of those grounds, the Arbitrator was barred by collateral estoppel from relying on that ground to support a finding of retaliation. However, because the award may be sustained under the first prong of SSA I without regard to the Arbitrator's statements on retaliation, we do not address the Agency's contentions challenging the Arbitrator's statements on retaliation.

Accordingly, we find that the award satisfies the first prong of the test set forth in SSA I and we will deny the Agency's first exception.

B. The Award Satisfies the Second Prong of the Test Established in SSA I

As to the second prong of the SSA I test, the Arbitrator noted that Weaver's progress review covering the first 5 months of the grievant's 8-month appraisal period indicated that the grievant's performance for that period was "evaluated Fully Successful[.]" Arbitrator's Award at 20. While the progress review "reflected some problems under Critical Element II," the Arbitrator found that "there was no indication of concern with the grievant's performance under the two other critical elements." Id. at 21.

With respect to the portion of Critical Element III on anticipating problems, apprising the supervisor, and suggesting solutions, the Arbitrator found that the grievant's rating "should have been Fully Successful" because Gurmankin's narrative provided "no basis to support" the grievant's rating of Marginal. Id. at 16.

With respect to the portion of Critical Element III on the grievant's dealings with the public, other Government agencies, and co-workers, the Arbitrator found that the grievant's handling of the comparable worth cases noted in Gurmankin's narrative "had been approved by her supervisor." Id. at 20. Rather than finding that the cases supported the grievant's Marginal rating, the Arbitrator found that the grievant's performance on those cases "primarily reflect[ed] a lack of supervision[.]" Id. The Arbitrator also examined an inappropriate statement allegedly made by the grievant and mentioned in Gurmankin's narrative. The Arbitrator noted that there was conflicting testimony on whether the grievant actually made the statement and determined that he would "not render a finding" on the matter. Id. at 21.

Based on his review of all of Gurmankin's comments under Critical Element III, the Arbitrator found "unpersuasive the Agency's assertion that it is not possible to support a rating above Marginal for this critical element." Id. at 18.

In our view, the Arbitrator determined that the grievant would have received a rating of Fully Successful for Critical Element III if the Agency had not violated Article 22 of the parties' agreement. That is, the Arbitrator determined what the grievant's rating "would have been . . . if the violation had not occurred[.]" SSA II, 34 FLRA at 328. In particular, the Arbitrator noted that for the first 5 months of the grievant's 8-month appraisal period, the grievant's performance had been evaluated Fully Successful and there were no problems mentioned with respect to Critical Element III. Further, the Arbitrator noted that Gurmankin supervised the grievant for the remaining 3 months of the appraisal period, but the Arbitrator rejected the grounds cited in Gurmankin's narrative to support the grievant's Marginal rating for Critical Element III. As the Arbitrator rejected the grounds used by Gurmankin to support the grievant's Marginal rating for Critical Element III, and as the Arbitrator noted that the grievant had been performing at the Fully Successful level for over half of the rating period, the Arbitrator determined that the grievant's rating for Critical Element III should have been Fully Successful.

Based on these findings, we conclude that the Arbitrator properly directed the Agency to grant the grievant a rating of Fully Successful for Critical Element III. See U.S. Department of Veterans Affairs, Medical Center and American Federation of Government Employees, Local 1168, 41 FLRA 250, 254 (1991) (Department of Veterans Affairs) (arbitration award which found that the agency failed to state "any rationale" for its decision to lower the grievants' ratings satisfied the second prong of the test).

The Agency argues that the Arbitrator had no authority under SSA II to raise the grievant's rating because: (1) "there is no evidence in the record" to support the Arbitrator's conclusion that the grievant should have been rated at the Fully Successful level; and (2) the Arbitrator "makes no affirmative finding that the [g]rievant actually performed at the Fully Successful level while under Gurmankin's supervision." Agency's Exceptions at 11, 12.

The Arbitrator examined the record and concluded that, based on his findings, he found "unpersuasive the Agency's assertion that it is not possible to support a rating above Marginal for this critical element." Arbitrator's Award at 18. As we noted above, the Arbitrator's award satisfies the second prong of the SSA I test. See Department of Veterans Affairs, 41 FLRA at 254. Therefore, we reject the Agency's argument that the Arbitrator had no authority under SSA II to raise the grievant's rating. The Agency's argument is simply an attempt to relitigate the merits of the case before the Authority and provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, General Committee and U.S. Department of Health and Human Services, Social Security Administration, 40 FLRA 584, 589 (1991).

The Agency also argues that the Arbitrator's determination that the grievant performed at the Fully Successful level for the first 5 months of the rating period "constitutes a non-fact" because the grievant's progress review stated that the grievant's performance was "not [] Fully Successful, but [was] 'in the Fully Successful area.'" Agency's Exceptions at 13 (emphasis in original). The Agency maintains that the Arbitrator "cannot reasonably rely" on the progress review because it was conducted by a supervisor who was "relieved of his supervisory duties" when "the Director had concerns regarding the quality of [the supervisor's] performance[.]" Id. at 13-14.

We will find an arbitration award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of the Treasury, Customs Service, Pembina District, Pembina, North Dakota and National Treasury Employees Union, Chapter 157, 41 FLRA 1420, 1427 (1991). The Agency has failed to establish that the Arbitrator's interpretation of the grievant's progress review is clearly erroneous. Rather, the Agency's argument constitutes nothing more than disagreement with the Arbitrator's finding of fact and evaluation of the evidence and, as such, provides no basis for finding the award deficient because it is based on a nonfact. See, for example, U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 889, 893 (1991).

Finally, the Agency asserts that the award is deficient because the Arbitrator raised the grievant's rating for Critical Element III without: (1) "render[ing] a finding" on relevant evidence concerning an inappropriate statement allegedly made by the grievant; and (2) considering "clearly relevant" evidence involving the grievant's performance on cases mentioned in Gurmankin's narrative with regard to Critical Element I. Agency's Exceptions at 16, 17. We construe the Agency's assertions as a claim that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence in determining the matter at issue. See, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991) (Hill Air Force Base) (arbitrator's refusal to consider evidence which, according to the arbitrator, appeared to "have enough merit to . . . warrant serious consideration of it" constituted a failure to conduct a fair hearing).

In this case, the Arbitrator examined the conflicting testimony over whether the grievant made an inappropriate statement to a charging party's attorney but determined that he would "not render a finding" on the matter. Arbitrator's Award at 21. Rather, the Arbitrator determined that the circumstances surrounding the alleged incident "embody all that is awry" in the relationship between the grievant and the Agency. Id. Unlike the arbitrator in Hill Air Force Base, the Arbitrator in this case clearly examined and discussed the relevant testimony. Therefore, we find that the Arbitrator's decision on this matter provides no basis on which to conclude that the Arbitrator failed to consider pertinent and material evidence in determining the issues before him. See U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation