35:0830(89)AR - - HHS, SSA, Birmingham, AL and AFGE Local 2206 - - 1990 FLRAdec AR - - v35 p830
[ v35 p830 ]
The decision of the Authority follows:
35 FLRA No. 89
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 27, 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 Jack E. Steen. A grievance was filed disputing the grievant's performance rating for a particular job task. The Arbitrator concluded that the grievant's performance rating did not violate the parties' collective bargaining agreement and denied the grievance.
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. The Agency filed an opposition to the Union's exceptions.
For the following reasons, we conclude that the Union has not demonstrated that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
In the grievant's annual performance rating for the fiscal year ending on September 30, 1988, the grievant received a performance rating of level 2 in Generic Job Task (GJT) No. 25. GJT No. 25 states: "Routes and distributes correspondence and mail." Attachment 2 to Union's Exceptions. In an interim appraisal by the grievant's previous supervisor for the period from October 1, 1987 through June 17, 1988, the grievant received a rating of level 3 for GJT No. 25.
A grievance was filed, and submitted to arbitration, claiming that by rating the grievant at level 2 instead of level 3 for GJT No. 25, the Agency violated provisions in the parties' collective bargaining agreement as well as provisions in the Agency's guidelines for the Generic Job Task Performance Appraisal System. The grievant requested that the evaluation of GJT No. 25 be changed from level 2 to level 3, that her overall evaluation be changed from "fully satisfactory" to "excellent," and that she be granted a cash award "and be made whole in all respects." Award at 1.
In the absence of the agreement of the parties on the issues to be resolved in arbitration, the Arbitrator stated the issues as follows:
1. Did Management abide by the provisions of the National Agreement in the evaluation process?
2. Did Management follow the guidelines of the [GJT] Performance Appraisal System in rating the grievant in [GJT] 25 for the period October 1, 1987, through September 30, 1988?
3. Did Management properly apply the [GJT] performance standards?
If Management failed in any of the above, what shall the remedy be?
The Arbitrator stated that "the Union did not convince [him] that any provisions of the contract were violated." Id. at 4. The Arbitrator also stated that the guidelines for the GJT Performance Appraisal System were followed by the Agency. With respect to the difference between the grievant's interim appraisal and her final appraisal, the Arbitrator found that the Agency "made a convincing argument that the grievant's performance deteriorated" during the latter part of the appraisal period. Id. The Arbitrator noted that an employee's conduct "can affect his/her work performance." Id. The Arbitrator also noted that the Agency's argument that it had "talked to the grievant about her performance, but to no avail[,]" would be "much stronger had it documented the talks." Id. The Arbitrator concluded, however, that the "Union presented no convincing evidence that the employee was rated unfairly." Id. Accordingly, the Arbitrator denied the grievance.
III. The Parties' Positions
A. The Union's Exceptions
The Union asserts that the Arbitrator (1) failed to follow the parties' contractual procedure for expedited arbitration, and (2) misstated the issues. The Union contends further that the Arbitrator has "alter[ed] the appraisal process and thus exceed[ed] his authority." Id.
B. The Agency's Opposition
The Agency asserts that the Arbitrator's award does not violate law, rule, or regulation, and that the Union's exceptions do not demonstrate that the award is deficient.
IV. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding the Arbitrator's award to be deficient.
A. The Union Has Not Demonstrated that the Arbitrator Exceeded His Authority
An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted, or awards relief to persons who are not encompassed within the grievance. See U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168, 1178 (1988). Where the parties do not stipulate the issue(s) for resolution, however, an arbitrator's formulation of the issues to be resolved is accorded substantial deference. See American Federation of Government Employees, Local 3954 and Federal Bureau of Prisons, Federal Correctional Institution, Phoenix, Arizona, 32 FLRA 782 (1988).
The Union has not demonstrated how the Arbitrator misstated the issues in this case. Therefore, in view of the Arbitrator's uncontroverted assertion that the parties did not agree on the issues to be resolved, we conclude that the Arbitrator did not exceed his authority in formulating and stating the issues. See, for example, id.
Similarly, the Union has not substantiated its assertion that the Arbitrator exceeded his authority by "superimposing" one article of the parties' agreement over another article and, thereby, "altering the appraisal process[.]" Exceptions at 2. The Arbitrator resolved the issues, as he formulated them, based on his interpretation and application of the parties' collective bargaining agreement. Although the Union disagrees with the Arbitrator's interpretation of the agreement, the Union has not demonstrated that the Arbitrator exceeded his authority in this respect. In our view, this contention constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement and, as such, provides no basis for finding the award deficient. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA No. 59 (1990) (exception contending that arbitrator exceeded his authority by granting a remedy that allegedly was inconsistent with the parties' agreement provided no basis for finding the award deficient).
B. The Union's Remaining Exception Provides No Basis for Finding the Award Deficient
The Union asserts that the Arbitrator failed to follow the parties' contractual procedures applicable to expedited arbitration. The Union maintains that although the agreement provides that "[t]here shall be no formal evidence rules[,]" the Arbitrator "made formal rules of evidence which affected the union only." Exceptions at 3. The Union asserts, in this regard, that the Arbitrator interfered with the Union's presentation of its case by placing time limits on the Union's cross-examination of Agency witnesses and limiting the number of questions that could be asked by the Union's representative during cross-examination.
It appears that the Union is asserting that the Arbitrator denied the Union a fair hearing. In this regard, the Authority will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to hear pertinent and material evidence. See, for example, Warner Robins Air Logistics Center, Department of the Air Force, Warner Robins, Georgia and American Federation of Government Employees, Local No. 987, 24 FLRA 968 (1986).
We conclude that the Union has not demonstrated that the Arbitrator's award is deficient because the Arbitrator denied the Union a fair hearing. In particular, there is nothing in the record before us to indicate that the Arbitrator acted improperly so as to deny the Union an opportunity to adequately present its case or prevent it from submitting pertinent and material evidence. Rather, it appears that the Union simply disagrees with the manner in which the Arbitrator conducted the hearing. Accordingly, we conclude that this exception provides no basis for finding the Arbitr