49:0824(77)AR - - HHS, SSA and AFGE, Local 2369 - - 1994 FLRAdec AR - - v49 p824

[ v49 p824 ]
The decision of the Authority follows:

49 FLRA No. 77














April 21, 1994


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 Monroe Berkowitz 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 did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance contesting the grievant's annual performance appraisal. For the following reasons, 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 filed a grievance disputing her performance ratings in Generic Job Task (GJT) Nos. 1 and 40.(1) When the grievance was not resolved, it was submitted to arbitration on the following issue:

Was [the grievant's] 1992 performance appraisal prepared in accordance with the National Agreement? If not, what shall the remedy be?

Award at 1.

The Arbitrator stated that the grievant was rated at level 3 (fully successful) in the two disputed GJTs and that the grievant sought level 4 (excellent) ratings in them. In addition, the Arbitrator stated that the grievant sought level 5 (outstanding) ratings in the three remaining GJTs, for which she had received level 4 ratings.(2) Further, the Arbitrator stated that, according to the Union, the ratings should be raised because the grievant's supervisor failed to: (1) explain the grievant's performance standards, (2) document the grievant's ratings, and (3) consider circumstances beyond the grievant's control which affected the grievant's performance. In addressing the Union's claims, the Arbitrator noted that, although applicable performance standards described performance at levels 2, 3, and 4, "the [l]evel 5 rating to which [the grievant] aspire[d] has no written performance standard." Id. at 4.

The Arbitrator concluded that the Union failed to establish that the grievant's supervisor acted arbitrarily or capriciously in rating the grievant. In particular, the Arbitrator found that the supervisor's judgment as to the grievant's performance was "based on fact and reached in a fair and equitable manner." Id. at 5. In addition, according to the Arbitrator, it was "clear that [the grievant] was not penalized for matters that were out of his control." Id. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

The Union contends that the award is based on a nonfact. In this regard, the Union contends that "[i]t is obvious that the Arbitrator's denial of the grievance is predicated on his mistaken belief that the grievant was seeking level 5 ratings in all GJTs." Exceptions at 3. According to the Union, but for the Arbitrator's "misapprehension as to the relief sought for GJTs 1 and 40[,] a finding could have been made that the grievant's appraisal had not been prepared in accordance with the [n]ational [a]greement." Id. at 4. The Union also contends that the grievant provided unrebutted testimony that he "deserved a level 4 rating for GJTs 1 and 40." Id. at 3. As such, the Union claims that the award violates Article 21, Section 6(B)(2) of the parties' negotiated agreement.(3)

IV. Analysis and Conclusions

A. Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached. See American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364 (1993).

The Union has not demonstrated that the award is deficient on this ground. The Union alleges that the Arbitrator denied the grievance as to GJT Nos. 1 and 40 because he erroneously believed that the grievant requested level 5 ratings in those GJTs. However, the Arbitrator expressly stated in the award that the grievant sought level 4 ratings in GJ