33:0687(83)AR - - AFGE Local 1568 and HUD - - 1988 FLRAdec AR - - v33 p687
[ v33 p687 ]
The decision of the Authority follows:
33 FLRA No. 83
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
UNITED STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT (HUD)
October 31, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Mollie H. Bowers filed by the American Federation of Government Employees, Local 1568 (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. The United States Department of Housing and Urban Development (the Agency) filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance relating to Element 5 of the grievant's performance appraisal. The Arbitrator found that the Union had presented no basis for setting aside that portion of the appraisal and changing the grievant's rating for that element from Satisfactory to Outstanding. The Union takes exception to the Arbitrator's reasoning for denying the grievant a rating of Outstanding for Element 5. For the reasons stated below, the Union's exceptions are denied.
II. Background and the Arbitrator's Award
In June 1985, the grievant, a GS-525-07 Accounting Technician, received a new position description for her Accounting Technician job. In the fall of 1985, the grievant's immediate supervisor gave her a work plan which listed the six elements and standards by which the grievant's performance would be rated from October 1, 1985 to September 30, 1986. These elements were: (1) Billing and Collection of Accounts Receivable; (2) Reconciliations; (3) Reports; (4) Files; (5) Communication with Others; and (6) Word Processing Systems. Award at 7.
On November 6, 1986, the grievant received her annual appraisal rating. She was rated Satisfactory on each element and as a result, her overall rating for Fiscal Year 1986 was Satisfactory. The grievant disagreed with this rating and filed a grievance. At Step 3 of the grievance procedure, the Regional Commissioner agreed to change the grievant's rating on Element 3 to Outstanding. This change was insufficient to raise the overall rating, and the matter was referred to arbitration. Award at 7.
The issue before the Arbitrator was whether the Agency violated the collective bargaining agreement by denying the grievant a performance rating of Outstanding for Fiscal Year 1986, and if so, what remedy should be granted. Award at 1.
Article 38.01 of the parties' collective bargaining agreement states that the application of the performance appraisal system will be fair, objective, and job-related. Award at 3. The Arbitrator found that Elements 1, 3, and 4 had been applied in an unfair and non-objective way in violation of Article 38.01 of the collective bargaining agreement. Award at 11-13. The Arbitrator found that the record contained sufficient evidence to show that the grievant met the Outstanding requirements for those three standards and, therefore, the Arbitrator raised the grievant's rating to Outstanding for Elements 1, 3, and 4.
On Elements 2 and 6, the Arbitrator found that the Union had presented insufficient evidence to overcome those Satisfactory ratings. Therefore, the Arbitrator kept the ratings for Elements 2 and 6 at Satisfactory.
With respect to Element 5, "Communication with Others," the Arbitrator stated that while part of the standard seemed to be out of the employee's control, "an arbitrator has no authority to overturn the standard." Award at 13. The Arbitrator applied the standard and found that the Union had not met its burden of proof, particularly because it had not presented witnesses to testify that the grievant deserved an Outstanding rating. The Arbitrator stated that, "[s]ince the Union has the burden of proof in this case, the failure to come forward with such witnesses is fatal." Award at 13. Therefore, the Arbitrator kept the rating for Element 5 at Satisfactory.
III. Positions of the Parties
The Union states that it "takes exception to the [A]rbitrator's reasoning" for denying the grievant a rating of Outstanding for Element 5. Exceptions at 1. The Union contends that Element 5 violates the collective bargaining agreement because it is unfair, not objective, and not job-related. The Union acknowledges that a change in the rating for Element 5 will not change the grievant's overall rating, but it requests that the Authority set aside that portion of the award and change the rating for Element 5 from Satisfactory to Outstanding. Exceptions at 2.
The Agency contends that the Union's exceptions constitute an attempt to reargue its original position and, therefore, do not warrant review of the award. Opposition at 3.
We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; specifically, that the award is contrary to law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.
The Union's argument that the award on Element 5 violates the collective bargaining agreement constitutes nothing more than an attempt to relitigate the merits of the grievance and disagreement with the Arbitrator's: (1) findings of fact; (2) evaluation of the evidence; (3) reasoning and conclusions; and (4) interpretation and application of the parties' collective bargaining agreement. These contentions provide no basis for finding the award deficient. See, for example, U.S. Army Transportation Center, Fort Eustis, Virginia 23604-5353 and Local R4-6, National Association of Government Employees, 32 FLRA 1250 (1988) (disagreement with the arbitrator's findings of fact, evaluation of the evidence and testimony, reasoning and conclusions, and interpretation and application of the collective bargaining agreement provides no basis for finding the award deficient); Veterans Administration and American Federation of Government Employees, 30 FLRA 648 (1987) (exception which attempts to relitigate the merits of a grievance before the Authority provides no basis for finding an award deficient).
We note that the Arbitrator erroneously stated that "an arbitrator has no authority to overturn" performance standards established by management. Award at 13. In Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987), we found that, absent a contrary provision in the collective bargaining agreement, an arbitrator may examine the performance standards and elements established by management in order to determine whether they comply with applicable legal and regulatory requirements, particularly the provisions of 5 U.S.C. § 4302 and 5 C.F.R. Chapter 430.
In this case, the Arbitrator did not have before her the question of the validity of the standard for Element 5 under applicable law and regulation. The issue as framed by the Arbitrator was whether the manner in which the Agency applied the standard to the grievant violated the parties' collective bargaining agreement. Therefore, the Arbitrator's statement in this case as to an arbitrator's authority to overturn performance standards provides no basis for finding that the Arbitrator violated the Statute by keeping the grievant's rating for Ele