HOLDING: Grievance was DENIED. Grievant claimed he was denied a promotion under the terms of an MOU that demoted him from a Financial Institution Examiner (“FIE”) 4 to FIE 2. The Grievant claimed he should have been promoted to FIE 3 after completing a probationary period as an FIE 2. The Employer denied the promotion because the Grievant failed to perform at a satisfactory level. The Arbitrator agreed that the Grievant failed to perform satisfactorily and denied the Grievance.
By Memorandum of Understanding (“MOU”), the Grievant accepted a demotion from Financial Institution Examiner (“FIE”) 4 to FIE 2. Under the terms of the MOU, the Grievant was to serve a probationary period as FIE 2. Upon successful completion of this probation, the Grievant was to be promoted to FIE 3. On the Grievant’s performance evaluation, he received three “below expectation” ratings, and four “meets expectations.” The Employer believed the Grievant’s performance to still be unsatisfactory and did not promote him to FIE 3. At Arbitration, the Employer argued the case was not procedurally arbitrable because the terms of the MOU prohibited the Grievant from introducing the MOU at arbitration, unless to enforce the terms of the MOU.
The Union argued that it was attempting to enforce the terms of the MOU, and therefore the case was procedurally arbitrable. It asked that the Grievant be promoted to FIE 3 because he had been rated as meeting expectations in four categories. The Union also argued that the Grievant’s performance suffered because he was harassed, intimidated and subjected to unfair practices. The Union also claimed that during the FIE 2 probationary period, the Grievant’s work was criticized by his supervisors. The Union stated that the MOU specifically required the Employer to assist the Grievant in improving his performance. Because the Employer did not assist the Grievant, but instead criticized his work, the Employer failed to comply with the terms of the MOU.
The Employer first argued that the Grievance was not procedurally arbitrable under the terms of the MOU. Next, the Employer claimed that the Union was attempting to expand the appeal rights of performance evaluations under Article 22. Article 22 only provides for appeal through Step 4, not arbitration. On the merits, the Employer presented testimony and evidence which, it argued, showed the Grievant continued to perform at an unacceptable level throughout the FIE 2 probationary period. Because the Grievant did not perform, the Employer should not be required to promote him to FIE 3.
The Arbitrator found the grievance to be procedurally arbitrable. He determined that the Union was attempting to enforce the terms of the MOU, which was allowed by the MOU. The Arbitrator denied the grievance on the merits. He stated, “While the total of ‘meets expectations’ was barely above the ‘below expectations’ on the performance evaluation, the memos detailing [the Grievant’s] performance leave no doubt that serious deficiencies were noted regularly. Based on the record, it cannot be doubted that the Grievant did not satisfy the terms of the . . .” MOU. For these reasons, the Arbitrator denied the grievance in its entirety.