45:0934(92)AR - - NAGE Local R14-52 and Red River Army Depot, Texarkana, TX - - 1992 FLRAdec AR - - v45 p934
[ v45 p934 ]
The decision of the Authority follows:
45 FLRA No. 92
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
RED RIVER ARMY DEPOT
August 17, 1992
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 Harry Weisbrod filed on behalf of 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.
For the reasons discussed below, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a materials expediter, filed a grievance asserting that her rating in a critical element, entitled "receipt of durable items," should be "exceeded" rather than "met." When the parties could not resolve her grievance, it was submitted to arbitration. As agreed to by the parties, the issue before the Arbitrator was:
Did the Agency violate Article XXVII of the Collective Bargaining Agreement in the rating of the Grievant for the period October 1, 1989 to September 30, 1990? If so, what shall the remedy be?
Award at 2.(*)
The Arbitrator concluded, as relevant here, that the Union failed to establish by a preponderance of the evidence that the grievant's performance in the disputed critical element exceeded the standard for that element. Further, he found that "[n]o evidence was presented that [the supervisor] was aware the [g]rievant attempted to file a sexual harassment case against him prior to the date of the evaluation . . . ." Id. at 4-5. However, the Arbitrator found that the supervisor was aware that the grievant had accused him of stealing prior to preparing her evaluation. The Arbitrator concluded that the Union did not show that the supervisor's evaluation of the grievant's work "was influenced by [the grievant's] charges against him of stealing or sexual harassment." Id. at 11. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union asserts that the performance standard for the disputed element is "unreasonable, unrealistic and unobtainable and therefore invalid[,]" and, consequently, the award is contrary to law. Exceptions at 3. According to the Union, because the standard is invalid, the Arbitrator should have found that the grievant "was not evaluated fairly" under Article XXVII of the parties' agreement. Id. at 4 (emphasis in original). In addition, the Union claims that the award is based on a nonfact. Specifically, the Union asserts that the Arbitrator should have found that the Agency's reason for rating the employee as "met" was "pretextual." Id. at 6. The Union asserts that the record shows that the grievant's supervisor knew about the grievant's sexual harassment charges when he evaluated her.
The Agency contends that the Union's exceptions merely constitute an attempt to relitigate its case.
IV. Analysis and Conclusions
We reject the Union's argument that the award is contrary to law because the performance standard for the grievant's disputed critical element is invalid. The portion of the standard that the Union asserts is invalid provides that an incumbent forwards requests for durable items "with no more than 1-2 instances per rating period where durables were not received on a timely basis due to fault of incumbent." Performance Standards, Attachment to Exceptions. The Union argues that this standard is invalid "because during a year the incumbent would handle and process 5200 individual document numbers (individual goods/items) and therefore making only two errors would require 99.96% accuracy." Exceptions at 3.
However, the record establishes that the grievant was not evaluated on the standard that the Union asserts is invalid. Rather, the grievant was rated on a different performance standard. Under the standard applied to the grievant, she was rated as "met" because "failure to timely receive parts . . . occurred no more than once in any thirty requisitions." Evaluation, Attachment to Exceptions. In other words, the grievant was, in fact, evaluated on a performance standard which required that she process requests for parts with only one instance of untimeliness in 30 emergency requisitions. The Union has not asserted, nor is it apparent, that the performance standard actually used by the Agency to rate the grievant is unreasonable, unrealistic, and unobtainable. See, for example, Gonzalez v. Department of the Army, 40 MSPR 241 (1989) (a standard that sets a performance level which may be exceeded and does not allow for an agency to remove or demote an employee for a single instance of poor performance is not absolute). We conclude, therefore, that the Union has not established that the performance standard applied in evaluating the grievant is invalid. Accordingly, the award is not contrary to law.
We also reject the Union's argument that the award is based on a nonfact. In order for the Authority to find that an award is deficient because it 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. See Overseas Education Association and U.S. Department of Defense, Office of Dependents Schools, 45 FLRA 214, 216 (1992). In this case, the Union has not demonstrated that the Arbitrator's finding concerning the grievant's