39:1051(89)AR - - Transportation, FAA, Decatur ATCT and National Air Traffic Controllers Association - - 1991 FLRAdec AR - - v39 p1051

[ v39 p1051 ]
The decision of the Authority follows:

39 FLRA No. 89












March 6, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Barbara W. Doering filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (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 found that the grievant's performance appraisal included comments which the Arbitrator considered to be "unfair, either as the result of investigatory procedure or by virtue of the circumstances." Award at 12. The Arbitrator also found that the evidence did not provide "any basis for upward revision of the 'fully successful' rating given the grievant" and she denied the grievant's request that her appraisal be raised to "exceptional." Id.

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

This dispute involves the performance appraisal given the grievant, an air traffic controller, for the period April 1, 1988 to March 31, 1989. The grievant received an overall rating of "fully successful" based on her rating in three job elements. A grievance was filed alleging that the appraisal "was the result of bias and lack of objectivity on the part of the rating official, her immediate supervisor[.]" Award at 4. When the grievance was not resolved, it was submitted to arbitration on the following issue:

Did the evaluation of the grievant . . . include erroneous and misleading statements as alleged in the grievance? If so--based upon the evidence produced--is requested relief justified, or, alternatively, is there any other form of remedy which would be appropriate?

Id. at 1.

The Arbitrator examined the appraisal and determined, as relevant here, that the Union arguments were "well-taken with respect to the fairness of inclusion of some of the negative comments" in the appraisal. Id. at 10. The Arbitrator concluded, in this regard, that particular portions of attachments to the appraisal should be removed.

The Arbitrator also concluded, however, that the removal of the specified portions of the appraisal did not warrant raising the grievant's appraisal rating from "fully successful" to "exceptional." The Arbitrator stated, in this regard, that the Union did not offer any examples of "'outstanding' or 'exceptional' performance by the grievant which [the grievant's supervisor] failed to consider in the [appraisal] and which might justify a higher rating." Id. at 11. The Arbitrator concluded that the Union did not prove that the grievant was entitled to a higher appraisal rating and denied the Union's request that the grievant's rating be raised.

III. Union's Exceptions

The Union argues that the award is deficient because the Arbitrator did not address the issue of whether the grievant's appraisal violated 5 U.S.C. º 4302, 5 U.S.C. º 2302, and an applicable Agency regulation. The Union also argues that the award is deficient because the Arbitrator gave "little-to-no discussion or weight . . . to the lack of credibility of [the grievant's supervisor]." Exceptions at 1-2. The Union states that, despite the testimony by numerous witnesses that the supervisor was not truthful, the Arbitrator gave the supervisor's testimony "the highest consideration." Id. at 2. The Union also disagrees with the Arbitrator's statement that it did not prove that the grievant deserved a higher rating. The Union notes that it provided the grievant's last three appraisals, where her ratings were "exceptional."

IV. Analysis and Conclusions

With respect to the Union's first exception, the Arbitrator framed the issue before her as whether the grievant's appraisal contained erroneous or misleading statements and, if it did, whether the request that the appraisal rating be raised was justified. There is no indication in the record that the parties stipulated the issue to be resolved. In the absence of such a stipulation, an arbitrator's formulation of the issue is accorded substantial deference. For example, Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA 830, 832 (1990). The award is directly responsive to the issue as the Arbitrator framed it. Accordingly, we reject the Union's assertion that the award is deficient because the Arbitrator did not address whether the appraisal violated various laws and regulations.

We reject also the Union's exception that the award is deficient because the Arbitrator failed to determine that the grievant's supervisor was not a credible witness and because the Union proved that the grievant was entitled to a higher appraisal rating. The Union has not demonstrated, in this regard, that the Arbitrator based her decision on a nonfact. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA No. 33, slip op. at 607 (1991). Similarly, there is no basis on which to conclude that the Arbitrator denied the Union a fair hearing. See U.S. Department of the Army, Army Reserve Personnel, St. Louis, Missouri and American Federation of Government Employees, Local 900, 35 FLRA 1200, 1205 (1990). Compare U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA No. 7, slip op. at 3-6 (1991). We conclude, instead, that this exception constitutes mere disagreement with the Arbitrator's findings of fact and her evaluation of