49:1497(133)AR - - Air Force, Hill AFB, Utah and AFGE, Local 1592 - - 1994 FLRAdec AR - - v49 p1497

[ v49 p1497 ]
The decision of the Authority follows:

49 FLRA No. 133









LOCAL 1592





June 30, 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 Herbert Oestreich 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 a grievance contesting the grievant's performance rating. For the following reasons, we conclude that the exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a sheet metal mechanic, disputed his annual performance rating by claiming that he should have received a "superior" rather than a "fully successful" overall rating. Award at 3. When the grievance was not resolved, it was submitted to arbitration on the following issue, as stipulated by the parties:

Was the Grievant's 1993 Civilian Performance and Promotion Appraisal accomplished in accordance with applicable law, rule, regulation, and the Master Labor Agreement? If not, what shall be the remedy?

Award at 2.

According to the Arbitrator, the Union "failed to show in specific terms" how the grievant's appraisal violated applicable law, rule, regulation or the parties' agreement. Id. at 3. Also according to the Arbitrator, the Union offered "no measurable evidence" that the grievant was not rated properly. Id. On the other hand, the Arbitrator stated that the grievant's supervisor cited "specific incidents and examples in the [g]rievant's performance that substantiated his . . . ratings on the various elements and standards . . . ." Id. at 4.

The Arbitrator rejected as unsubstantiated the Union's claim that the grievant's performance standards were not measurable and that, therefore, the standards were invalid under Article 15, Section 2(e) of the parties' agreement.(*) He found that, "on the surface the language of some of these standards appears vague, and some standards seem to overlap with others." Id. at 7. However, according to the Arbitrator, the standards were "measurable . . . [i]n the hands of a trained and experienced appraiser[.]" Id. The Arbitrator also rejected the Union's claim that the standards were not fairly applied to the grievant, as required by Article 15, Section 2(e). The Arbitrator concluded that the grievant's supervisor had not treated the grievant differently than other employees under his supervision.

Finally, the Arbitrator found "inconclusive" evidence regarding the Union's claim that Agency guidelines pertaining to the grievant's standards violated applicable law, regulation, and the parties' agreement. Id. at 5. In this regard, the Arbitrator recommended that, instead of pursuing issues regarding the guidelines in the expedited arbitration proceeding before him, the Union should pursue it through a separate grievance or negotiations "[t]he more general issue of the consistency and legality of the admittedly confusing array of Agency regulations, guidelines, and directives pertaining to performance appraisals in general[.]" Id. at 6.

As his award, the Arbitrator denied the grievance.

III. Exceptions

The Union asserts that the Arbitrator failed to hear and consider the Union's evidence and arguments that the grievant's standards and the Agency's guidelines pertaining to those standards were invalid and were not fairly applied to the grievant. The Union further argues that the Arbitrator improperly refused to rule on the issue of the legality of the Agency's guidelines.

The Union also claims that the Arbitrator misapplied Article 15, Section 2(e) of the parties' agreement. First, the Union states that the Arbitrator failed to determine what the grievant's rating would have been if the grievant's performance standards had properly been applied. Second, the Union asserts that the Arbitrator erred in concluding that the standards were sufficiently measurable, as required by the parties' agreement.

IV. Opposition

The Agency contends that the Arbitrator heard and considered the Union's evidence concerning the validity of the performance standards. According to the Agency, the Union is merely relitigating the merits of the grievance.

V. Analysis and Conclusions

A. The Arbitrator Did Not Fail To Conduct A Fair Hearing

We construe the Union's claim that the Arbitrator refused to hear and consider evidence regarding the validity of the standards and their application to the grievant as a claim that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence. See, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991)(arbitrator's acknowledged failure to give "serious consideration" to the union's position constituted failure to conduct a fair hearing).

The Union has not demonstrated that the Arbitrator refused to hear or consider pertinent evidence or arguments. In this regard, the Union does not identify any evidence which the Arbitrator arguably failed to hear. As to the failure to consider arguments, the Arbitrator made numerous findings and conclusions regarding the Union's arguments. For example, the Arbitrator found that "the Union ha[d] not met its burden of proof in showing that the standards . . . were not measurable or that they were applied in an unfair manner." Award at 7. The Arbitrator also determined that the "evidence submitted [was] inconclusive[]" to support the Union's claim that the Agency's guidelines violated law, regulation, or the parties' agreement. Id. at 5. In addition, the Arbitra