51:0754(66)AR - - Air Force, 42 Air Base Wing, Gunter Annex, Maxwell AFB, AL and AFGE, Local 997 - - 1996 FLRAdec AR - - v51 p754



[ v51 p754 ]
51:0754(66)AR
The decision of the Authority follows:


51 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

42 AIR BASE WING, GUNTER ANNEX

MAXWELL AIR FORCE BASE, ALABAMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 997

(Union)

0-AR-2730

_____

DECISION

January 31, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.(1)

I. Statement of the Case

This matter is before the Authority on exceptions to a consolidated award of Arbitrator James E. Fulford filed by the Union and the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. Exceptions were filed to the portions of the award resolving two out of the three grievances consolidated therein. The Union filed exceptions to the Arbitrator's denial of Grievance No. 2, which sought to raise the grievant's overall performance rating to "Superior." The Agency filed an opposition to the Union's exceptions. The Agency filed exceptions to the Arbitrator's granting of Grievance No. 3, in which the grievant asserted that she was not given a correct performance rating. The Union did not file an opposition to the Agency's exceptions.

For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award concerning Grievance No. 2 is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions. Further, we conclude that the Agency has established that the Arbitrator's award as to Grievance No. 3 is deficient under section 7122(a) of the Statute because it does not draw its essence from the parties' collective bargaining agreement and we set aside that portion of the award.

II. Grievance No. 2

A. Arbitrator's Award

The grievant received an overall performance rating of "Fully Successful," which was subsequently raised to "Excellent," but not to the highest rating of "Superior" as requested in the grievance. The Arbitrator framed the issue as whether the Agency violated the parties' collective bargaining agreement by not giving the grievant an overall rating of "Superior." The Arbitrator determined that the record evidence did not support a finding that the grievant was treated differently from other employees rated by the same supervisor. Based on the appraisal factors, the Arbitrator concluded that he could not make a finding that the "Excellent" overall rating given the grievant was improper and, therefore, he denied the grievance.

B. Exceptions

1. Union's Contentions

The Union contends that the Arbitrator "did not even consider" Article VII of the parties' agreement.(2) Union's Exceptions at 1. Further, the Union claims that the Arbitrator "ignored" the intent of 5 U.S.C. § 4302(2)-(5). Id. The Union also disputes the Arbitrator's evaluation of the evidence, contending that the Arbitrator disregarded certain evidence and drew conclusions from witnesses' testimony that do not comport with the evidence.

2. Agency's Opposition

As a preliminary issue, the Agency asserts that the Union's exceptions were improperly filed because they were filed with the Authority's Atlanta Regional Office. Citing Local 1749, American Federation of Government Employees and Commander, 47FTW, Laughlin Air Force Base, Texas, 24 FLRA 117 (1986) (Laughlin AFB), the Agency requests that the Union's exceptions be dismissed on procedural grounds. As to the merits of the award, the Agency contends that the exceptions constitute nothing more than disagreement with the award and the Arbitrator's determinations as to witnesses' credibility.

C. Analysis and Conclusions

1. Exceptions Were Timely Filed

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22. All documents filed with the Authority must be filed in the Docket Room of the Authority's Case Control Office, 607 14th Street NW., Washington, D.C. 20424-0001. 5 C.F.R. § 2429.24(a).  

The Arbitrator's award was served by mail and deposited in the U.S. mail on April 10, 1995. Accordingly, the date of service of the Arbitrator's award is April 10, 1995. Therefore, the 30-day period for filing exceptions to the award expired on May 9, 1995. As the award was served by mail, 5 days are added to the due date for filing exceptions. That date was May 14, 1995, a Sunday, and thus the due date became the close of business on Monday, May 15, 1995. 5 C.F.R. § 2429.21.

The Union's exceptions were addressed to the "Federal Labor Relations Authority, Washington, D.C.," and were postmarked on May 15. Nothing in the record before the Authority supports the Agency's assertion that the exceptions postmarked on May 15 were filed with the Authority's Atlanta Regional Office and then forwarded from the regional office to the Authority. Accordingly, the exceptions should be considered filed on the due date, May 15, the date on which they were deposited in the U.S. mail. The Agency's reliance on Laughlin AFB is misplaced because that case involved exceptions to an award which were mailed to an Authority Regional Office and forwarded by that Regional Office to the Authority's Case Control Office outside of the permissible time limits for filing.

Consequently, we find that the exceptions were timely filed and are properly before the Authority.

2. The Award Draws Its Essence from the Parties' Agreement

We construe the Union's assertion that the Arbitrator did not consider the parties' agreement as an argument that the award fails to draw its essence from the parties' agreement. In order for an award to be found deficient on this basis, the party making the allegation must demonstrate that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

The Arbitrator interpreted the parties' agreement and determined, based on the evidence submitted, that the agreement was not violated. Because the Union has offered no support for its bare assertion that the Arbitrator's interpretation of the agreement is implausible, irrational, or unconnected to the wording of the agreement, the Union has not demonstrated that the award fails to draw its essence from the agreement. Consequently, we deny the Union's exception.

3. The Award Is Not Contrary to Law

We construe the Union's unsupported assertion that the Arbitrator "ignored" the intent of 5 U.S.C. § 4302(2)-(5) as an assertion that the award is contrary to law. Union's Exceptions at 1. Where there is no explanation supporting an exception which contends that an award is contrary to law, and none is apparent to the Authority, the Authority will deny the exception. E.g., American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 399 (1995). See also American Federation of Government Employees, Local 3184 and Social Security Administration, Pasadena, Texas, 50 FLRA 449, 452-53 (1995). The Union has not supported its assertion that the Arbitrator's award is contrary to law. Moreover, it is not apparent, based on the record evidence, that the award is contrary to law. Therefore, we will deny this exception.

4. The Arbitrator Did Not Fail To Conduct a Fair Hearing

We construe the allegation that the Arbitrator disregarded certain evidence and drew conclusions from witnesses' testimony that do not comport with the evidence as a contention that the Arbitrator failed to conduct a fair hearing. It is well established that 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 proceedings 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 124, 126 (1995).

The Union has not established that the Arbitrator refused to hear or consider pertinent or material evidence, or took any actions in conducting the proceeding which prejudiced the Union so as to affect the fairness of the proceedings as a whole. Accordingly, we deny this exception. See id.

III. Grievance No. 3

A. Arbitrator's Award

The grievant was rated "met" in one of her critical elements and received an overall rating of "Excellent." In order to receive the highest overall rating of "Superior," which the grievant had received the previous year, she would have had to have been rated "exceeded" in all her critical and non-critical elements. The Arbitrator did not specifically frame an issue for resolution.

The Arbitrator found that the Agency failed to provide a narrative statement concerning the "met" rating "as is required" and noted that in the previous year's rating the Agency had provided a narrative statement supporting its "exceeded" rating in the same element. Award at 7. The Arbitrator stated that the Agency did not substantiate the "met" rating because it had no evidence to support the rating and, consequently, he sustained the grievance. As a remedy, the Arbitrator ordered the Agency to review the grievant's rating as to this element and to raise her overall rating to "Superior" if it was determined that certain factors did not prevent her from receiving the higher rating.

B. Exceptions

The Agency contends that the Arbitrator erroneously concluded that it was required under the parties' agreement or Air Force (AF) policy to provide a narrative statement to support the disputed "met" rating.(3)

Further, the Agency asserts that the Arbitrator did not properly cancel the grievant's performance rating because he did not determine, as required by Authority precedent, that the Agency had committed a violation in applying established elements and standards. The Agency also asserts that, even assuming that the Arbitrator had established a basis for canceling the grievant's rating, he was not empowered to direct the Agency to raise the grievant's rating to "Superior" where it had not been established that the grievant deserved the higher rating.

C. Analysis and Conclusions

We construe the Agency's assertion that the Arbitrator erroneously concluded that it was required under the parties' agreement to document a rating of "met" by providing a narrative statement as an assertion that the award fails to draw its essence from the parties' agreement. The standard for demonstrating that an award is deficient on this basis is set forth in Part II.C.2 of this decision, supra.

We find that the Agency has established that the Arbitrator's award does not draw its essence from the parties' agreement. The Agency contends, without contradiction from the Union, that there is no requirement under the parties' agreement that it support a "met" rating with a narrative statement. Rather, the parties' agreement specifically provides in section 4.a of Article VII that "[a]ny rating on an element other than 'met the standard' will require documentation on the performance plan." Agency's Exceptions, Attachment 3 (emphasis added).

Accordingly, the plain wording of Article VII, section 4.a is not compatible with the Arbitrator's determination that the Agency was required to support its "met" rating in the disputed element with a narrative statement.(4) Consequently, we find that the consolidated award, as to Grievance No. 3, evidences a manifest disregard of the parties' agreement, and we set aside that portion of the consolidated award. E.g., U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 48 FLRA 342, 348-49 (1993) and cases cited therein. In light of our conclusion, we find it unnecessary to address the Agency's other contentions.

IV. Decision

The Union's exceptions concerning Grievance No. 2 are denied. The Arbitrator's award as to Grievance No. 3 is set aside.

APPENDIX

An attachment to an April 28, 1994, Air Force (AF) policy letter, covering the relevant performance rating period, states:

As in the past, each element contained in the [performance] plan will be rated as "not met," "met," or "exceeded." However, the brief narrative statement required in the past substantiating ratings will only be required when the element is rated "not met," or when the narrative on the AF Form 860A is used to support a performance cash award.

Agency's Exceptions, Attachment 4; see Agency's Exceptions at 3.

AF Form 860A, which is used to record an employee's overall performance rating and ratings in specific critical and noncritical elements, states in relevant part: "Performance elements rated as "Did Not Meet" or "Exceeded" must be substantiated by a brief narrative statement." Agency's Exceptions, Attachment 1; see Agency's Exceptions at 2.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. This case was considered and all deliberations were completed prior to the date on which Donald S. Wasserman was sworn in as a Member of the Authority. Therefore, Member Wasserman did not participate in this decision.

2. The record does not include a copy of the portion of the parties' agreement relied on by the Union. Although the Union cites several sections of the agreement, the only portion of the agreement quoted by the Union is Article VII, section I, which, according to the Union, provides in relevant part that "established standards are job-related and objective." Union's Exceptions at 1.

3. The parties' agreement provides in Article VII, entitled "Performance Rating," at section 4.a as follows:

Employee's performance rating will be the result of application of standards of performance to the employee's performance on both critical and noncritical elements. Only elements identified in the performance plan will be rated. Any rating on an element other than "met the standard" will require documentation