45:0797(71)AR - - Air Force, San Antonio Air Logistics Center, Kelly AFB, TX and AFGE Local 1617 - - 1992 FLRAdec AR - - v45 p797
[ v45 p797 ]
The decision of the Authority follows:
45 FLRA No. 71
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Robert L. Taylor 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 Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance relating to the grievant's performance appraisal. For the following reasons, we find no basis on which to conclude that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant is employed as a WG-10 machinist. The grievant's supervisor, with whom the grievant was "good friends[,]" expressed concern about the grievant's personal association with the secretary of another supervisor. Award at 1. Shortly thereafter, the grievant advised his supervisor that he was taking medication and should not be operating the machine to which he had been assigned. The supervisor sent the grievant to the dispensary and assigned him to light work in a different unit. The Arbitrator found that the grievant was "insulted by [the supervisor's] action" and subsequently sent the supervisor a "Two-Way Communication." Id. at 2. The grievant claimed that the supervisor's attitude toward the grievant changed after the supervisor received the communication and that the supervisor commented to the grievant that "you cut your own throat when you filed that 2-way memo." Id. The grievant then received a performance appraisal that had a lower overall rating than the grievant had received in prior years.
The Arbitrator did not set forth the issue before him at arbitration, other than noting that the grievance concerned the grievant's performance appraisal. The Arbitrator found that "[t]here was no testimony as to the 'goal' or 'target' of [the grievant's] job and there was no proof that [the grievant] suffered financially as a result of the reduced performance rating. However, his pride was hurt." Id. at 3. On this basis, the Arbitrator concluded "that the dispute is moot" and "dismiss[ed] the grievance . . . ." Id.
III. Union's Exceptions
The Union claims that the award is contrary to law, rule, and regulation. Specifically, the Union asserts that the award is contrary to "AFR 40-452 as well as Article 15 of the Master Labor Agreement." Exceptions at 1. The Union claims that the provisions of the parties' agreement and the Agency's regulation were made known to the Arbitrator, notwithstanding the Arbitrator's statement that there was no testimony regarding the grievant's job goal or target. The Union also states that the grievant had received prior performance evaluations with a higher rating from the same supervisor and that when the supervisor was questioned at the hearing about the lower evaluation, the Arbitrator improperly sustained an Agency objection to the question. The Union states that it was never given an opportunity to learn the answer to that question.
The Union further contends that not all of the facts it presented were made part of the official record or were mentioned in the Arbitrator's award, and that various facts noted by the Arbitrator were misstated in terms of their chronological order. The Union also states that its witnesses "weren't afforded the same courtesy that management's witnesses were afforded[,]" and "weren't informed at all of the hearing . . . ." Id. at 4. The Union adds that it had to stop the hearing frequently to ensure that witnesses were being released from work to appear at the hearing.
IV. Agency's Opposition
The Agency contends that the exceptions are unsupported and fail to establish that the award is deficient. The Agency asserts that the Union has failed to demonstrate that the grievant's appraisal was not completed in accordance with the parties' agreement and applicable rules and regulations. The Agency also argues that the Union is seeking de novo review of the grievance by the Authority.
V. Analysis and Conclusions
The Union has failed to establish that the award is contrary to law, rule, or an Agency regulation. The Union has not cited a law or rule with which the award allegedly conflicts and has not shown that the award violates any law or rule. Similarly with respect to the cited Agency regulation, the Union has not established that the award is inconsistent with the regulation. In our view, the Union's arguments constitute mere disagreement with the Arbitrator's findings and conclusions and provide no basis for finding the award deficient. See U.S. Department of the Treasury, Customs Service, Houston, Texas and National Treasury Employees Union, 41 FLRA 485, 491-92 (1991).
We construe the Union's argument that the Arbitrator's award violates the parties' master labor agreement as a contention that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this ground, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 44 FLRA 1202, 1204 (1992).
The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Union has not shown that the Arbitrator interpreted the agreement in a manner that was irrational, implausible or unconnected with the wording of the agreement. Instead, we conclude that the exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such disagreement provides no basis for finding the award deficient. See, for example, id.
Further, the Union's assertion that the Arbitrator failed to set forth certain facts in his award and misstated the sequence of events provides no basis for finding the award deficient. This contention constitutes mere disagreement with the Arbitrator's evaluation of the evidence and is an attempt to relitigate the case before the Authority. See U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 34 FLRA 315, 318 (1990). We note also that an arbitrator need not set forth more specific findings than were made here. See, for example, U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 41 FLRA 472, 476-77 (1991).
In addition, we conclude that if we were to construe the above assertion as a contention that the award is based on nonfacts, the assertion does not demonstrate that the award is deficient. In order for the Authority to find that an award is deficient on the ground that it is based on a nonfact, the party must demonstrate that the central fact underlying an award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA 430, 435 (1991). The Arbitrator concluded, based on his evaluation of the evidence, that there was no basis on which to sustain the grievance. The Union disputes certain arbitral findings but has not established that the findings were clearly erroneous. Therefore, the Union has not demonstrated that the award is based on nonfacts. Instead, the exception constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and provides no basis for finding the award deficient. See, for example, Department of Veterans Affairs, Waco, Texas and American Federation of Government Employees, Local 2571, 42 FLRA 1109, 1111 (1991).
Finally, we construe the Union's remaining arguments as a contention that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient when it is established that an arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 108-09 (1992). However, an arbitrator has considerable latitude in the conduct of a hearing, including ruling on objections to the admissibility of witness statements, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. Id. Further, federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. Id. at 109.
We conclude that the Union has not demonstrated that the Arbitrator denied it a fair hearing. In particular, the Union has not shown that the Arbitrator acted improperly so as to deny the Union a fundamentally fair hearing. See U.S. Department of the Air Force, Griffiss Air Force Base, New York