35:1218(139)AR - - HHS, SSA, Region VI, Dallas, TX and AFGE Local 1336 - - 1990 FLRAdec AR - - v35 p1218
[ v35 p1218 ]
The decision of the Authority follows:
35 FLRA No. 139
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
May 31, 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 Charles N. Carnes. A grievance was filed disputing the grievant's performance rating for two particular job tasks. The Arbitrator 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.
We conclude that the Union has failed to establish that the Arbitrator's award is deficient, and we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, who is a Union representative, filed a grievance concerning her annual performance appraisal for the period October 1, 1987, through September 30, 1988. The grievant received a level 3 (Excellent) performance rating for Generic Job Tasks (GJT's) Nos. 68 and 49, and an overall summary of Excellent. The grievant filed a grievance asserting that she should have received a level 4 rating for GJT's Nos. 68 and 49 and an outstanding overall rating. When the matter was not resolved, the parties submitted it to arbitration.
The grievant had two supervisors during the appraisal period at issue and the grievant received two written progress reviews for the rating period--the first on May 11, 1988, from her original supervisor and the second from her new supervisor on September 19, 1988. In addition, the grievant was detailed to another office for 120 days. No revisions were made to her performance plan for the detail. The grievant received a complimentary letter from management for the work she performed while on detail instead of a formal appraisal.
The grievant had been involved in an unfair labor practice case during a previous rating period. The Arbitrator found that a supervisor had "influenc[ed] employees in [the grievant's] work unit to mistrust and dislike her and to file an unfair labor practice charge to have her removed as a Union Representative." Award at 1. The charge was dismissed and the supervisor involved in the case was demoted and removed from the supervisory position. In addition, a sexual harassment charge had been filed by the grievant and another female employee against the supervisor who reviewed her work on May 11, 1988. The supervisor "denied that this action on [the grievant's] part affected his May progress review of her work in any way." Id.
Before the Arbitrator, the Union argued that the grievant's rating for GJT No. 68 was "lowered without explanation" and that the grievant should have received a higher rating. Id. The Union asserted that "there [were] no written objective standards for GJT No. 68, and that Grievant was never given instruction concerning the standard." Id. Further, the Union asserted that the Agency's "failure to raise Grievant's GJT No. 49 score to a 4 was arbitrary and capricious since her output of cases was sufficient to merit it, even though she was on a four month detail during the year." Id. at 1-2. In addition, the Union maintained that the grievant never received the "required performance interviews, and that there [was] no written performance standard for 'Outstanding' performance." Id. at 2.
The Agency argued before the Arbitrator that the Union had the burden to demonstrate that the grievant's work merited a higher rating. The Agency asserted that the grievant's immediate supervisor "considered all aspects of her performance, and that no personal or political reasons went into the appraisal, which was confirmed by two higher level officials." Id. at 2.
The Arbitrator found that the grievant received two performance reviews. The Arbitrator determined that although one review was close to the end of the rating period, "requirements about the time [were] rather flexible." Award at 2. The Arbitrator stated that there was no requirement that "the interview . . . contain explicit numeric performance level statements ("2," "3," or "4"), or that the employee be warned that they might receive a lower score on the next appraisal." Id. In addition, the Arbitrator determined that there was no requirement for a written performance standard at the "outstanding" level.
The Arbitrator stated that in addition to the sexual harassment charge filed by the grievant against her first supervisor in the 1987-1988 rating period, the grievant had been subjected to a "terrible ordeal" during an earlier rating period in which the grievant's supervisor had influenced employees to file an unfair labor practice charge against her. Id. However, the Arbitrator determined that there was no evidence that the new supervisor was biased against the grievant because of those experiences or the grievant's Union representational activities. Id. Further, the Arbitrator determined that the performance reports from the grievant's previous supervisor did not "skew" the appraisal because her "new boss had plenty of time to make his own independent judgments about her work." Id. at 3.
The Arbitrator dismissed the grievance.
III. Union's Exceptions
The Union claims that the award is contrary to section 7116(a)(1) and (2) of the Statute and 5 C.F.R. § 430.205(d)(1) and (e).(*)
The Union claims that the award is contrary to section 7116(a)(1) and (2) of the Statute because "[t]he Arbitrator . . . did not consider the impact of [the grievant's] protected activities in his determination of whether or not she was rated fairly by . . . her Rating Officer." Exception at 2. The Union asserts that "the grievant's unionism was a consideration in her rating." Id. The Union also claims that "the Agency violated government-wide rules and regulations and the National Agreement by failing to provide two documented performance interviews that summarized [the grievant's] progress in comparison to the performance expectations." Id. at 4.
The Union asserts that the Arbitrator did not address the Agency's violation of 5 C.F.R. § 430.205(d)(1) and (e) which states:
(d) Appraisal of performance on details. (1) When employees are detailed or temporarily promoted within the same agency, and the detail or temporary promotion is expected to last 120 days or longer, agencies shall provide written critical elements and performance standards to employees as soon as possible but no later than 30 calendar days after the beginning of a detail or temporary promotion. Ratings on critical elements must be prepared for these details and temporary promotions and must be considered in deriving an employees's next rating of record.
. . . .
(e) Progress review. A progress review shall be held for each employee at least once during the appraisal period. At a minimum, employees shall be informed of their level of performance by comparison with the performance elements and standards established for their positions.
In addition, the Union asserts that the Agency violated Article 21, Section 3A and 7B of the National Agreement. Section 3A states that the performance elements and standards and their application must be fair, reasonable, and objective. Section 7B states that at least two documented progress reviews summarizing the employee's progress in comparison to the performance requirements should be given when the appraisal period lasts 12 months.
Finally, the Union asserts that the Authority established in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (Social Security Administration I) that an arbitrator may modify a grievant's performance appraisal if the arbitrator finds that an agency violated law, rule, regulation, or the collective bargaining agreement in appraising the grievant. The Union asserts that the grievant engaged in protected activity and that the Arbitrator should have decided that, but for the grievant's Union activities, she would have received the same rating of record as she received for the period ending September 30, 1987.
The Agency contends that the "union's arguments constitute nothing more than disagreement with the arbitrator's decision and an attempt to relitigate the matter." Opposition at 1.
V.Analysis and Conclusion
We conclude that the Union has failed to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute.
We reject the Union's argument that the award is contrary to section 7116(a)(1) and (2) of the Statute because "[t]he Arbitrator . . . did not consider the impact of [the grievant's] protected activities in his determination[.]" Exceptions at 2. The Arbitrator stated that "[t]here is no evidence indicating that [the Rating official] was improperly prejudiced or biased against [the grievant] . . . because of her Union . . . activities." Award at 2. Accordingly, there is no basis on which to conclude that the Arbitrator did not consider the grievant's protected activities. In view of the Arbitrator's finding, we conclude that the Union's argument constitutes mere disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of this case before the Authority. This disagreement provides no basis on which to find the Arbitrator's award deficient under the Statute. See, for example, Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553, 560-61 (1990) (an exception disagreeing with an arbitrator's evaluation of evidence relating to protected activities provided no basis for finding the award deficient).
In addition, although the Union cites various regulations and provisions in the parties' agreement, the Union has not articulated how the award conflicts with them. We conclude, therefore, that the Union's exceptions constitute mere disagreement with the Arbitrator's evaluation of evidence and testimony and his interpretation and application of the parties' agreement. Accordingly, these exceptions provide no basis for finding the award deficient. See, for example, Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 160, 166 (1990).
Finally, we turn to the Union's argument concerning Social Security Administration I. In U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990), we discussed the two-prong test established in Social Security Administration I. We held that:
First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order management to grant that appraisal or rating.
In this case, the Arbitrator did not find that the Agency had failed to apply established standards or that it violated law, regulation, or a provision of the parties' agreement in appraising the grievant. As the Arbitrator did not find a violation of law, regulation, or National Agreement, there is no basis on which to conclude that the Arbitrator erred in failing to modify the grievant's appraisal. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 2006, 35 FLRA No. 99 (1990). We conclude, therefore, that