American Federation of Government Employees, Local 3911 (Union) and United States Environmental Protection Agency, Region 2, New York, New York (Agency)


64 FLRA No. 126     







LOCAL 3911










April 27, 2010


Before the Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

I.          Statement of the Case

            This matter is before the Authority on exceptions to an award of Arbitrator Martin Ellenberg 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 exceptions. 

            As relevant here, the Arbitrator denied the grievance, which alleged that the Agency violated the Statute and the parties’ agreement by issuing a discriminatorily motivated performance rating.  For the reasons that follow, we deny the Union’s exceptions. 

II.        Background and Arbitrator’s Award

The Union’s local chief steward (grievant) filed a grievance alleging that his performance was not evaluated according to the proper performance standards, and that he received an unfair performance evaluation as a result of his supervisor’s discrimination.  Award at 2-3.  The grievant alleged that his supervisor discriminated against him for his Union activities in violation of the Statute and that the Agency violated numerous provisions of the parties’ agreement, including a provision prohibiting discrimination based on “race, color, creed, national origin, sex, age, sexual preference, Union affiliation, lawful political affiliation, marital status, or qualifying handicapping condition.”  Id.    

As relevant here, at arbitration, the parties stipulated the issues as:

Was the [g]rievant’s 2006 rating arbitrary and capricious?

. . . .

[W]as the [g]rievant discriminated against because of his gender, race, or other prohibited personal practice when issued his performance rating?

. . . .

Was the [g]rievant discriminated against because of his membership in a labor organization and/or his Union activities in violation of 5 U.S.C. [§] 7116 (a)(1), (a)(2) and/or (a)(8) when issued his 2006 performance rating?[1]

Id. at 6.

The Arbitrator evaluated whether the grievant’s “Fully Successful” rating -- rather than the “Exceeds Expectations” rating to which the grievant testified he was entitled -- was arbitrary and capricious.  Id. at 8-9.  The grievant had been evaluated under a pass/fail rating system for the nine years prior to the challenged rating.  Id. at 8.  The Arbitrator noted that the grievant’s supervisor testified about occasions when, “despite being the ‘lead’ person[,]” the grievant’s performance “showed a lack of initiative, failure to provide ‘input, guidance and suggestions on policies and procedures’ and failure to ‘consistently communicate . . . effectively . . . to enhance the understanding of the Agency’s policies and programs.’”  Id. at 9.  In contrast, the Arbitrator stated that the Union “introduced little testimony or evidence to demonstrate that [the grievant’s] performance exceeded the ‘Fully Successful’ rating.”  Id.  In this connection, the Arbitrator determined that the Union did not present evidence of the grievant’s outstanding performance, but, instead, focused on criticizing the performance of the grievant’s supervisor.  Id. at 10. 

Based on the foregoing, the Arbitrator concluded that the Union had not demonstrated that the grievant’s performance exceeded the “Fully Successful” level.  Id. at 9-10.  The Arbitrator found that the rating was not arbitrary and capricious, and stated that, consequently, “the questions regarding discrimination are moot.”  Id. at 10.  Accordingly, he denied the grievance.  Id.

III.       Positions of the Parties

A.        Union’s Exceptions

            The Union argues that the award is contrary to law because the Arbitrator’s finding that the grievant’s performance rating was not arbitrary and capricious “cannot moot the questions of Title VII discrimination and discrimination under [the Statute.]”  Exceptions at 5-6.  According to the Union, the Arbitrator failed to apply the required “standards and burdens” because, in cases involving racial and gender discrimination and alleged violations of the Statute, Agency decisions are subject to review based upon the preponderance of the evidence standard, not under the more deferential “arbitrary and capricious” standard.  Id. at 6. 

In addition, the Union asserts that the Arbitrator exceeded his authority by concluding that the discrimination claims were moot and improperly failing to consider those claims.  Id.  The Union also asserts that the Arbitrator failed to rule on the “predicate legal issue” of whether the supervisor’s alleged failure to keep records documenting the basis for the grievant’s rating -- in violation of the performance evaluation standards in the parties’ agreement -- rendered the rating “per se arbitrary and capricious.”  Id. at 6-9.

B.                 Agency’s Opposition

The Agency argues that the Arbitrator did not exceed his authority or issue a decision contrary to law because, “once the Arbitrator determined that the Union failed to present evidence that the grievant should have received a higher rating, there was no further analysis required.”  Opp’n at 3.  In addition, the Agency argues that the Arbitrator did not fail to address a “predicate legal issue” because the Arbitrator ruled on all of the stipulated issues before him.  Id. at 5 n.3 (quoting Exceptions at 7).     

IV.       Analysis and Conclusions