35:0417(54)AR - - Air Force, Air Force Logistics Command, Hill AFB, UT and AFGE Local 1592 - - 1990 FLRAdec AR - - v35 p417
[ v35 p417 ]
The decision of the Authority follows:
35 FLRA No. 54
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 5, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Garth L. Mangum filed by 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 Agency filed an opposition to the Union's exception.
The Arbitrator denied a grievance challenging the grievant's performance rating. For the following reasons, we conclude that the Arbitrator's award is deficient and that the matter should be remanded to the parties for resubmission to the Arbitrator.
II. Background and Arbitrator's Award
The grievant received an overall performance rating of "fully successful" for the 1988 appraisal year. The previous year, the grievant received, from a different supervisor, an overall performance rating of "excellent." A grievance was filed protesting the "fully successful" rating and was submitted to arbitration on the following stipulated issue:
Did Management violate the Master Labor Agreement, law or Air Force regulations in the performance appraisal and rating of [the grievant]? If so, what is the appropriate remedy?
Award at 1. The Arbitrator stated that the "nub" of the issue was "whether [the grievant] should have been assessed at 7 or higher on the critical elements and whether 7 is meeting or exceeding the requirements of a fully successful rating." Id. at 3.
The Arbitrator first determined that there was "no procedural fault in the appraisal and rating process." Id. at 4. The Arbitrator then noted the requirements for an overall rating of "excellent" and found that, because the grievant had received a rating of 7 on all critical elements, the grievant should have been given an overall rating of excellent. However, the Arbitrator also stated that, because "this issue was never raised by the Union and no testimony was taken on it," he would hold the final decision open pending "written submissions from both parties[.]" Id. at 5.
Accordingly, in his award of June 19, 1989, the Arbitrator "tentatively sustained" the grievance. Id. The Arbitrator stated that he would issue a "final decision" based on the parties' written submissions. June 19, 1989, Letter Accompanying June 19 Award at 1. The Arbitrator also stated that, if the parties did not provide further information by July 10, 1989, the tentative decision would constitute a "positive sustaining of the grievance." Id.
On June 29, 1989, the Arbitrator issued a final decision denying the grievance. The Arbitrator stated that "the necessary information emerged from testimony in a companion case . . . in further hearing June 26, 1989." Addendum to the June 19, 1989 Decision at 2. Based on that information, the Arbitrator found that because he had "no sound means of judging the Grievant's performance, he [was] left to examine the procedures by which Management arrived at its rating." Id. The Arbitrator concluded that, "having found no procedural fault," the grievance was denied. Id.
III.Positions of the Parties
The Union contends that the award is deficient because the Arbitrator issued his final decision without giving the parties the opportunity to submit the additional information requested by the Arbitrator in his tentative decision. The Union asserts that it should be permitted to submit the requested information to the Arbitrator and requests that the Authority remand the matter for further consideration by the Arbitrator.
The Agency opposes the Union's request. The Agency notes that the Arbitrator exercised his authority to hold open the decision for further clarification because he was confused by the information provided by the parties. The Agency states that the Arbitrator "received no communication from either party prior to his enlightenment at a later arbitration." Opposition at 1. The Agency asserts that it can "see no reason to now allow the union to offer further confusion." Id.
IV.Analysis and Conclusion
An arbitrator has considerable latitude in the conduct of a hearing. See, for example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local No. 547, 24 FLRA 959 (1986). In this regard, an assertion that an arbitrator would not allow a party to present all evidence does not, alone, provide a basis for finding an award deficient. See, for example, id.
In addition, the Authority, like the Federal courts, accords substantial deference to an arbitrator's formulation of the issues to be decided. See, for example, American Federation of Government Employees, Local 3954 and Federal Bureau of Prisons, Federal Correctional Institution, Phoenix, Arizona, 32 FLRA 782 (1988). However, an arbitrator who fails to confine a decision and remedy to the issues, as they were submitted to or formulated by the arbitrator, exceeds his or her authority. See, for example, Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986).
In our view, the situation in this case is analogous to those cases in which an arbitrator fails to confine a decision to the issues as they were submitted or formulated by the arbitrator. The Arbitrator issued a tentative decision on an issue which, he stated, had not been raised or addressed by the parties. The Arbitrator provided the parties with an opportunity to submit information on the issue and stated that he would issue a final decision based on that information. The Arbitrator stated further that, if no further information was provided by a certain date, the tentative decision would become final.
There is no basis on which to conclude that