[ v58 p505 ]
58 FLRA No. 125
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE AIR FORCE
311TH HUMAN SYSTEMS WING
BROOKS AIR FORCE BASE, TEXAS
April 30, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Leonard C. Bajork filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the grievance over the grievant's performance appraisal. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, a procurement technician, was rated "`Slightly Above Fully Successful'" the highest of the three central range gradations in the performance appraisal system for her performance. Award at 2. The grievant had expected to receive a superior rating, one of the three high range scores, based on oral comments to her about her work from her supervisor, who specifically stated that she was "`doing a great job for him.'" Id.
According to the Arbitrator, the Senior Contracting Officer reported that there were several complaints about the grievant's work, that she failed to perform certain tasks in addition to closing out contracts, and that contractors had to call in order to receive payment for work under their contracts. Before the Arbitrator, another staff member who assigned distribution work said that the grievant did not process files and did not make data entries, thus necessitating the staff member to ask for a new assistant. While the Arbitrator found that the Agency's failure to make annotations on the AF 971 appraisal form constituted a per se violation of the agreement, the Arbitrator found that the grievant knew what was required of her to receive a higher performance rating based on her written performance standards, and that this failure to annotate did not justify the remedies requested.
The supervisor's occasional compliments aside, the Arbitrator found that the evidence revealed that the grievant needed "to complete all her assigned work in a timely fashion." Id. at 8. The Arbitrator found that the statements of four employer witnesses were "consistent and credibly show" that the grievant had much room for improvement. Id. at 8-9. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that the award fails to draw its essence from the parties' agreement. Specifically, the Union contends that the award is inconsistent with Article 15.02(f), which states that the Agency shall provide clear guidance to employees regarding what type of performance will merit certain ratings on each element of the performance plan. According to the Union, this guidance is to be noted in the AF 971 file. The Union asserts that it introduced the grievant's AF 971 file into evidence and that it contained no notations as to what, if any, improvements were needed in the grievant's performance. The Union further asserts that instead of documenting needed improvement, the supervisor complimented the grievant and never informed her that her performance was lacking in any respect.
The Union also contends that the award is based on nonfact because of the Arbitrator's determination that the Union never presented evidence that the Agency failed to provide the grievant with clear guidance regarding her performance. The Union maintains that the grievant failed to receive an accurate performance plan and feedback, and thus, was deprived of the opportunity to improve herself if she needed to do so. The Union argues that it proved this allegation by introducing the blank form AF 971 which contained no notations regarding the grievant's performance. The Union asserts that the testimony of the grievant and her supervisor also demonstrated that the Union's contention was accurate. [ v58 p506 ]
Finally, the Union claims that it was denied a fair hearing because the Arbitrator refused to allow the Union to introduce pertinent evidence to impeach the testimony of the supervisor and the Senior Contracting Officer. The Union asserts that the Arbitrator permitted an Agency witness to testify without the grievant and her attorney in the room and denied the grievant's attorney the opportunity to cross-examine the witness. The Union also contends that the Arbitrator "demonstrated partiality" to the Agency's lawyers. [*] Exceptions at 1.
B. Agency's Opposition
The Agency contends, contrary to the Union's first assertion that the grievant lacked guidance regarding improving her performance, that the grievant had a performance plan that her supervisor reviewed with her, and that the grievant's duties were the same as the previous rating period. The Agency argues that the Union failed to demonstrate that the grievant's performance merited a higher performance rating. According to the Agency, the Union based its claim solely on the grievant's testimony, which was countered by testimony from the grievant's supervisor and that of other senior employees. The Agency asserts that while the supervisor did compliment the grievant from time to time, during meetings with the grievant he repeatedly emphasized that she needed to do accurate work on a timely basis. The Agency also asserts that the 971 form was annotated for a mid-cycle review and a February performance feedback. See Objection Exhibit 4.
The Agency also asserts that while the Arbitrator found a technical violation in the failure to annotate the grievant's AF 971, it did not constitute a substantive violation. Moreover, the Agency contends that the Union failed to show a direct link between this lack of file annotation and the grievant's performance rating.
The Agency contends that the Union's essence and nonfact exceptions are really objections to the Arbitrator's credibility assessments, which are not the proper subjects for exceptions.
According to the Agency, the Arbitrator did not allow some of the Union's cross-examination questions because they were either directed to the wrong witness, concerned matters not within the employee's knowledge or otherwise constituted argument instead of questioning. In particular, the Agency asserts that the Union attempted to introduce another document to rebut the supervisor's testimony. The Agency offered to have the author of the document and the supervisor recalled so that they could be questioned regarding the document, but the Union declined.
The Agency maintains that no questioning of witnesses occurred when the Union representative was not present at the hearing. The Agency points out that the Union introduced no evidence to substantiate this contention. The Agency asserts that the grievant, her representative and two Union members were permitted to leave the hearing room to confer, but no testimony or discussion of case facts occurred while they were out of the room.
The Agency concludes by contending that the Union was given every opportunity to present its case during the hearing. The Agency asserts that the Arbitrator repeatedly asked the Union representative about calling additional witnesses to present its position or to rebut the Agency's position, but the Union declined. According to the Agency, at one point the Arbitrator was prepared to allow the Union representative to testify and waited an hour to get testimony underway to give the Union time to organize its papers. The Agency argues that the Arbitrator's actions demonstrate an effort to afford the Union every opportunity to present its case and show that he did not act with partiality.
IV. Analysis and Conclusions
A. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
For an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established 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 an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Ctr., New Cumberland, Pa., 55 FLRA 1303, 1307 (2000) (Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Union contends that under the parties' agreement, the Agency is to provide guidance to employees regarding their performance. The Arbitrator found that the testimony and record evidence demonstrated that the grievant was apprised of her performance. There is [ v58 p507 ] nothing in the Arbitrator's actions that indicates that the award cannot be derived from the agreement, is unfounded and unconnected with the wording and purpose of the agreement, does not represent a plausible interpretation of the agreement, or evidences a manifest disregard of the agreement. Accordingly, we deny the exception.
B. The Award Is Not Based on Nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Co., 48 FLRA 589, 593 (1993) (Lowry AFB). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. AFGE, Local 1923, 51 FLRA 576, 579 (1995). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at hearing. Lowry AFB, 48 FLRA at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).
As the Union's exception focuses on the extent to which the grievant was put on notice as to her performance and what was expected of her in that regard, it constitutes a disagreement over a factual matter that the parties disputed at hearing. Accordingly, the Union's exception does not establish that the award is based on a nonfact.
C. The Arbitrator Conducted a Fair Hearing
The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995).
In this case, the Union claims that the Arbitrator received testimony while the grievant and the Union's representative were outside the hearing room, an assertion the Agency flatly rejects. As there is nothing in the record to substantiate the Union's claim, the Arbitrator's award does not rely on evidence to which the Union was not privy during the hearing.
Additionally, the Arbitrator noted that
[f]avorable awards are the result of good case theory, favorable facts and contract applications. With all due respect, there is little of each that the Union has presented.
Award at 8. The Arbitrator also noted that, in connection with the form AF 971, that the Union did not demonstrate how failure to annotate a form would justify the remedies sought by the Union. The Arbitrator commented that arbitrators "are not vested with unlimited discretion to devine [sic] contract violations." Id. In these circumstances, the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing.
The Union's exceptions are denied.
Footnote * for 58 FLRA No. 125 - Authority's Decision
The Union's request that the Authority review the Arbitrator's license is not properly before the Authority. See, e.g., Veterans Admin., Leavenworth, Kan., 34 FLRA 898, 902 (1990) (union's claim that arbitrator violated code of professional responsibility did not raise a matter that was appropriate for consideration under § 7122(a) of the Statute).