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The decision of the Authority follows:
50 FLRA No. 25
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
ELMENDORF AIR FORCE BASE
February 13, 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 Vern E. Hauck 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.(1)
The Arbitrator denied a grievance filed over the grievant's annual performance rating.
For the following reasons, we conclude 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 Union filed a grievance claiming that the grievant should have received an overall annual performance rating of "superior" rather than "excellent." When the grievance was not resolved, it was submitted to arbitration on the stipulated issue of whether the grievant was given a "proper appraisal" and, if not, what the appropriate remedy should be. Award at 1.
The Arbitrator rejected the Union's claim that the Agency violated the parties' collective bargaining agreement by failing to notify the grievant during the appraisal year that his performance had decreased from the previous year. According to the Arbitrator, the grievant was informed both orally and in writing that he needed to improve aspects of his performance. The Arbitrator also rejected the Union's claim that the Agency violated an Agency regulation, AFR 40-452, when the grievant's reviewing official changed certain aspects of the grievant's appraisal.(2) The Arbitrator concluded that the reviewing official acted properly in accordance with the regulation. The Arbitrator also concluded that the Union failed to establish that the disputed rating was improper on any other ground. Accordingly, the Arbitrator denied the grievance.
III. Union's Exceptions
The Union contends that the Arbitrator improperly permitted the Agency to submit a post-hearing brief over the Union's objection. The Union relies on Article 9 Section 5 of the parties' agreement, which provides that, "[n]o post-hearing briefs shall be authorized except by mutual consent." Exceptions at 1. In addition, the Union refers to evidence it offered at the hearing which, according to the Union, established that the reviewing official acted improperly in changing the grievant's ratings. The Union also claims that the grievant's reviewing official violated AFR 40-452 (3) and "current policy" by failing to document the reasons for which he changed the disputed ratings. Exceptions at 1.(4)
IV. Analysis and Conclusions
A. Fair Hearing
We construe the Union's arguments regarding the Agency's post-hearing brief and the evidence it submitted at the hearing as contentions 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 generally U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 105-07 (1991).
The Union has not established that the Arbitrator acted in a manner inconsistent with the parties' agreement by permitting the Agency to file a post-hearing brief. However, even assuming that the Arbitrator improperly accepted the Agency's post-hearing brief, the Union makes no argument and nothing in the record indicates that such acceptance resulted in any prejudice to the Union. In addition, the Union's argument regarding the evidence it offered about the reviewing official's improper actions does not establish that the Arbitrator refused to hear or consider pertinent evidence. As neither contention demonstrates that the award is deficient, we deny this exception. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Boston Region and American Federation of Government Employees, Local 3760, 48 FLRA 1414, 1419 (1994); Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 352 (1990).
B. Agency Regulations
An award is deficient if it is inconsistent with a governing agency regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990).
The Arbitrator concluded that the Agency had demonstrated by a preponderance of the evidence that the grievant's reviewing official acted properly under AFR 40-452 in changing the grievant's ratings. Although the Union disagrees and asserts that the reviewing official improperly failed to substantiate the reasons for which he changed the ratings, it has not demonstrated that AFR 40-452 requires such substantiation or that the reviewing official failed to provide it. Similarly, the Union has not demonstrated that the award is inconsistent with the cited policy memorandum, which provides only that new forms must be filled out when typing errors are made but does not preclude the Agency from filling out new forms for other reasons. Thus, we conclude that the Union has not demonstrated that the award is inconsistent with Agency regulations.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The Agency filed an opposition which it concedes is untimely but requests the Authority to consider on the basis that to do so will not prejudice the Union. The Agency has not established extraordinary circumstances within the meaning of section 2429.23(b) of our Regulations necessary to waive the applicable time limit. Accordingly, we deny the request.
2. Although the Arbitrator made no findings on this point, it appears from the record that the reviewing official either lowered certain of the grievant's performance ratings or caused the rating official to lower the ratings.
3. The Union relies on paragraphs 2-13(b)(1), (2), and (3), which provide, in pertinent part:
b. When the performance appraisal and rating is accomplished . . . the emphasis is on the adequacy of the rating substantiation . . . .
(1) At this point, there should be no disagreement with performance plans . . . .
(2) If ratings on individual elements are substantiated, the rating may not be changed. . . .
(3) If the documentation does not clearly explain . . . a rating on an individual element, the reviewing official is given the opportunity to provide clarifying or additional information. . . .
Attachment to Exceptions.
4. The Union relies on section 3 of an Agency memorandum, entitled "Civilian Appraisal Closeout," which states, in pertinent part:
A new [performance rating] form should be accomplished when typing errors are made.
Attachment to Exceptions.