Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23 (Authority decision, January 22, 1990)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award rejecting a performance rating grievance. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

A logistics management specialist at Scott Air Force Base grieved a fully successful performance rating, arguing that his work warranted the excellent rating he had received the previous year. An arbitrator found that the supervisor had adequate opportunity to assess the work and that the rating was fair. The union claimed the award rested on an incorrect fact because the arbitrator had not considered a written performance narrative. The Authority held that this claim amounted to disagreement with the arbitrator's evaluation of evidence, not a decisive factual error. It denied the exceptions, leaving the rating award in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union's exceptions denied; award rejecting the rating grievance stands.
• Key point: A dispute over how the arbitrator weighed performance evidence did not establish a nonfact requiring the award to be set aside.

Full text (FLRA public release)

[ v34 p--- ]
34:--(83)AR

The decision of the Authority follows:

34 FLRA NO. 83

SCOTT AIR FORCE BASE
ILLINOIS

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R7-23

0-AR-1668

DECISION

January 22, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Edward W. Garnholz. The Arbitrator denied a grievance concerning a performance rating.

The National Association of Government Employees, Local R7-23 (the Union) filed exceptions under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and Part 2425 of the Authority's Rules and Regulations. Scott Air Force Base, Illinois, (the Agency) did not file an opposition to the exceptions.

For the reasons discussed below, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant worked as a Logistics Management Specialist, 346 series, in the plans section of the Logistics Directorate of the Air Force Communications Command. The grievant alleged that his performance rating of fully successful for the period ending June 30, 1987, was improper and inaccurate. The grievant contended that he had continued to perform as well as he had during the 1985-1986 rating period when his rating was "excellent." Further, the grievant contended that he was not counseled regarding any decline in performance or deficiencies in his work. In addition, the grievant complained that his supervisor "was not present long enough to ever give him a fair appraisal of his work" for the period in question. Award at 9. When the parties did not resolve the grievance, it was submitted to arbitration.

The issues before the Arbitrator were: (1) "Whether the Grievant's performance rating for the period July 1, 1986 to June 30, 1987 accurately reflects the quality of his work performance for that period?" and (2) "(W)hether the Grievant's performance rating for the relevant period is inaccurate, and, if so, should he receive priority consideration for promotion as a remedy?" Award at 10.

The Arbitrator concluded that the supervisor had ample opportunity to observe and review the grievant's work record even though the supervisor was out of town approximately 30 percent of the time. The Arbitrator further found that the grievant's supervisor cited major deficiencies in the grievant's work and noted that the supervisor's testimony was corroborated by the previous supervisor who supervised the grievant from July 1986 to December 1986.

The Arbitrator also found that the grievant "offered no evidence other than his own self-serving testimony" that his evaluation should be excellent. Award at 12. The Arbitrator determined that the grievant's performance rating was "fairly and evenly evaluated" for the relevant period. Id. at 13. Consequently, the Arbitrator denied the grievance.

III. Exceptions

The Union contends the "award is deficient because it is based upon a non-fact which is objectively determinable and which was central to the award." Exceptions to Award at 1. Specifically, the Union argues that the Arbitrator's conclusion that the Union presented no evidence other than the grievant's testimony to support a higher rating is contrary to evidence in the record. The Union alleges the Arbitrator did not consider the "substantiation of ratings," or written narrative, section of the grievant's performance appraisal. Union's Brief in Support of Exceptions at 3. The Union contends that the narrative showed that the grievant's performance exceeded the standards in two elements. According to the Union, the Arbitrator never discussed or considered this evidence.

IV. Discussion

The Statute sets forth the grounds on which an arbitration award will be found deficient. Under section 7122(a), an award will be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases. For the reasons stated below, we conclude that the Union fails to establish that the award is deficient on any ground set forth in the Statute.

The Union asserts the award is based on a non-fact. The Union contends the Arbitrator failed to consider certain evidence in the grievant's performance appraisal. The Union's contentions do not establish that the Arbitrator's award is deficient based on a non-fact. Compare American Federation of Government Employees. Local 1923. AFL - CIO and Health Care Financing Administration. Department of Health and Human Services, 33 FLRA 88, 91-92 (1988) (agency's non-fact argument constituted disagreement with an arbitrator's findings of fact and his interpretation and application of the parties' collective bargaining agreement and provided no basis for finding an award deficient) with U.S. Army Missile Command, Redstone Arsenal, Alabama and Local 1858, American Federation of Government Employees. AFL - CIO, 18 FLRA 374, 375-76 (1985) (award deficient because the central fact underlying the award, the existence of a collective bargaining agreement, was concededly erroneous and, in effect, was a gross mistake of fact but for which the arbitrator would have reached a different result).

The Union's assertions amount to mere disagreement with the Arbitrator's evaluation of the evidence and his factual findings and do not provide a basis for setting the award aside. Accordingly, the Union's exceptions will be denied.

V. Decision

The Union's exceptions are denied.