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44:1202(96)AR - - Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1992 FLRAdec AR - - v44 p1202

[ v44 p1202 ]
The decision of the Authority follows:

44 FLRA No. 96









LOCAL 1592




May 8, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an exception to an award of Arbitrator Gerald Cohen 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 exception.

The Arbitrator denied a grievance contesting an employee's annual performance appraisal. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

A grievance was filed contesting the grievant's annual performance appraisal of fully successful. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue as follows:

Was [g]rievant rated fairly and objectively, in accordance with law, rules and regulations? If not, what shall the remedy be?

Award at 1.

The Arbitrator concluded that there was no evidence that the grievant was appraised improperly. The Arbitrator rejected the Union's argument that the Agency violated section 15.02(f) of the parties' agreement by failing to inform the grievant of work deficiencies.(*) The Arbitrator found that it is necessary to inform an employee of work deficiencies only if the employee is being appraised as less than fully successful. Moreover, the Arbitrator found that the grievant had been advised informally that certain aspects of his performance could be improved. Finally, although the Arbitrator concluded that the grievant's supervisor failed to properly document the grievant's work, the Arbitrator stated that the failure was not "sufficient to overturn the appraisal." Id. at 6. Accordingly, the Arbitrator denied the grievance.

III. Position of the Parties

A. Union

The Union argues that, by finding that the grievant's supervisor was not required to inform the grievant of his deficiencies, the Arbitrator "effectively repealed part of the [parties' agreement]." Exception at 2. The Union requests that the case be remanded in order to resolve the grievance based on the Union's evidence.

B. Agency

The Agency contends that the Union "presented no evidence during the hearing . . . that [the grievant] exceeded any of the performance elements." Opposition at 1. Accordingly, the Agency argues that the "[A]rbitrator's decision should be sustained." Id.

IV. Analysis and Conclusions

We construe the Union's argument that the Arbitrator repealed part of the collective bargaining agreement as a contention that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this ground, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See American Federation of Government Employees, National Council of Education Locals, Council 252, Local 2607 and U.S. Department of Education, 43 FLRA 820, 824 (1991).

The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Arbitrator concluded that the parties' agreement did not require the Agency to inform the grievant of work deficiencies because his performance was not rated less than fully successful. The Arbitrator also concluded that the Agency's failure to properly document the grievant's work did not warrant a change in the grievant's rating. The Union has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or unconnected to the wording and purpose of the agreement. Instead, we conclude that the exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such disagreement provides no basis for finding the award deficient. See, for example, National Association of Aircraft Examiners, Local 1 and U.S. Department of the Navy, Naval Aviation Depot, Alameda, California, 43 FLRA 268, 270-71 (1991).

V. Decision

The Union's exception is denied.

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

*/ Section 15.02(f) provides, in relevant part:

Supervisors will meet with individual employees periodically . . . to discuss the employee's performance . . . . Such discussions will be annotated in the employee 971 file for use in the employee's annual performance evaluation.

Union's Exception at 65 of Exhibit B.