50:0194(37)AR - - NFFE, Locals 2096 and 2096SW and Navy Public Works Center, San Diego, CA - - 1995 FLRAdec AR - - v50 p194
[ v50 p194 ]
The decision of the Authority follows:
50 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCALS 2096 AND 2096SW
U.S. DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
SAN DIEGO, CALIFORNIA
February 28, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Paul W. Rothschild 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 the grievance of two employees who claimed that the Agency failed to grant them career-ladder promotions.
For the following reasons, we find that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The parties submitted the following issue for arbitration:
Did the Agency properly withhold promotion of the Grievants, who occupied a career[-]ladder position, to the next higher grade level at the expiration of the one[-]year waiting period?
If not, what should be the effective date of their respective promotions?
Award at 2.
The Arbitrator denied the grievance. He found that although both grievants' performance had been rated at least fully successful or higher at their current grade levels, there were legitimate supervisory concerns as to their qualifications for the next level of their career-ladder positions. The Arbitrator also found that the Union failed to demonstrate that there was a past practice of promoting career-ladder employees on the anniversary of their employment.
A. Union's Contentions
The Union asserts that it presented evidence to support its contention that there was a past practice of promoting career-ladder employees on the anniversary of their employment and that both grievants were denied their "scheduled advancements" as the result of a "hidden agenda." Exceptions at 4. The Union further claims that the Arbitrator failed to address evidence that was not favorable to the Agency's position and failed to consider the lack of evidence presented by the Agency.
B. Agency's Opposition
The Agency argues that the Union's exceptions constitute disagreement with the Arbitrator's findings, reasoning, and conclusions and provide no basis for finding the award deficient.
IV. Analysis and Conclusions
We construe the Union's arguments as a contention that the Arbitrator failed to provide a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA No. 25 (1995). Th