37:0137(8)AR - - SBA, Atlanta, GA and AFGE Local 3906 - - 1990 FLRAdec AR - - v37 p137



[ v37 p137 ]
37:0137(8)AR
The decision of the Authority follows:


37 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. SMALL BUSINESS ADMINISTRATION

ATLANTA, GEORGIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3906

(Union)

0-AR-1659

ORDER DISMISSING UNION EXCEPTION

DECISION ON AGENCY EXCEPTIONS

September 7, 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 Thomas P. Lewis.

The Arbitrator determined that the Agency violated the parties' collective bargaining agreement when it selected an employee without giving due consideration to the annual performance ratings of all the applicants. The Arbitrator ordered the Agency to rerun the selection process. The Arbitrator also found that the Agency erred in failing to timely provide the Union with complete information concerning the selectee. The Arbitrator did not sustain the Union's allegation that the grievant was threatened with retaliation for filing the grievance.

The Agency 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 Union filed an opposition to the exceptions, and as part of its opposition, an exception to one portion of the award. The Agency filed an opposition to the Union's exception, claiming that it was untimely filed.

For the following reasons, we find that (1) the Agency's exceptions fail to show that the Arbitrator's award is deficient, and (2) the Union's exception was not timely filed and must be dismissed.

II. Background and Arbitrator's Award

In October 1987, the Agency's Atlanta Regional Office advertised a vacant position as a Loan Specialist (Commercial), GS-12, in its Louisville District Office. There were three candidates for the position. All of them were GS-11 Loan Specialists (Commercial) in the liquidation section of the Portfolio Management Division of the Louisville office. A Personnel Management Specialist in the Regional Office reviewed and rated the three applicants, and ranked them all as "best qualified." Consistent with the job announcement for the position, the Personnel Management Specialist did not consider any candidate's annual performance rating, known as a PMAS. Award at 3-4.

The names of the three applicants were forwarded to the selecting official, the Director of the District Office, who designated the Chief of the Portfolio Management Division as the recommending official. The recommending official reviewed the applicants' applications, interviewed each of them, and recommended one employee to the Director. The Director selected that employee. A grievance was filed by one of the nonselected employees.

The Arbitrator first noted that section 15(b) of the parties' negotiated agreement provides that performance evaluations (PMAS ratings) "'shall not be used in the process of ranking and/or certifying applicants' for competitive promotions." Award at 8. Accordingly, the Arbitrator found that the Personnel Management Specialist "properly ignored the PMAS ratings." Id. The Arbitrator also found, however, that section 15(b) of the agreement "makes PMAS ratings relevant to the selecting official's consideration of properly ranked applicants[,]" and that section 15(a) of the agreement requires "that employees must be rated at least 'fully acceptable' in all critical elements of their assigned position to demonstrate ability to perform higher level work." Id. at 8.

The Arbitrator found that one of the critical elements in the performance plans of the employees in this case required cases to be handled "to assure orderly completion[,]" and that the performance standards for this critical element required the completion of 35 cases per year for minimally acceptable performance, 50 cases per year for fully successful performance, and 65 cases per year for a rating of "exceeds fully successful." Id. at 6. The Union introduced evidence, which was not challenged by the Agency, showing that the selected employee had closed only 34 cases during the appraisal period. The Arbitrator concluded that although the selectee was rated as "exceeds fully successful" with respect to this critical element, the selectee actually "fell one case below the standard for 'minimally acceptable'" for this critical element. Id. at 8.

The Arbitrator noted that the recommending official, who prepared the performance evaluations for all three applicants, testified that consistent with the parties' agreement, he could not "fault" the selectee for closing fewer than the required number of cases if the selectee had not been assigned a sufficient number of cases to close or if other factors beyond the selectee's control prevented the required number of closures. Id. at 8-9. The Arbitrator also noted that, in his recommendation, the recommending official stated that "'there is no question as to [the selectee's] ability to perform as exhibited by his last PMAS rating.'" Id. at 11. The Arbitrator concluded, however, that "it is one thing to discount apparent, but not necessarily valid, evidence of 'unacceptable' performance; it is quite another thing to find in that evidence positive support for a rating of 'exceeds fully successful.'" Id. The Arbitrator concluded that, in the absence of testimony from the selecting official, the selection may have been made "on the basis of misleading information, or at least, without all the information necessary to make a fair judgment." Id. at 12.

The Arbitrator stated that he could grant the Union's request that the grievant be promoted in place of the selectee only if he could "find that but for improper or unwarranted [A]gency action the [g]rievant would have been selected." Id. The Arbitrator found that although he could conclude that "the process was flawed[,]" he could not determine that the grievant was the "only legitimate choice" because the three applicants were all rated as best qualified on the roster of eligibles. Id. Therefore, the Arbitrator directed the Agency to "conduct a new selection process from the roster of eligibles[.]" Id. at 15.

The Arbitrator noted that the Union charged the Agency with two unfair labor practices: (1) "a refusal by the Agency to make [the selectee's] PMAS evaluation and other documents . . . available[,]" and (2) "retaliation against [the g]rievant . . . after he filed the grievance." Id. at 4, 5. The Arbitrator found that, although the Agency had provided the Union with a sanitized copy of the selectee's SF-171, including the self-assessment portion, the Agency had failed to timely provide the Union with a copy of his supervisory assessment and PMAS ratings until the hearing. The Arbitrator concluded that, pursuant to Authority precedent, the Agency "had an obligation to supply more information, earlier, than it did." Id. at 13. The Arbitrator did not provide a remedy with respect to this issue, however, because "[t]he Union has neither expressly requested a specific remedy nor briefed the question of what [the Arbitrator's] remedial authority might be." Id. at 14. As to the Union's second unfair labor practice allegation, the Arbitrator concluded that "[t]here is a lack of evidence to justify . . . the Union's allegation of a [ULP] in the form of retaliation against [the g]rievant." Id. Finally, the Arbitrator concluded that, as the grievant had "not suffered a withdrawal or reduction of pay or allowances[,]" he would deny the Union's request for attorney fees. Id.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency contends that the Arbitrator erred by substituting his judgment for that of the selecting official. The Agency contends that the Authority "has expressly held that section 7106(a)(2)(C) provides for management's right in filling positions to make a selection in its discretion from among a group of properly ranked and certified candidates for promotion or from [an]other appropriate source." Exceptions at 7. The Agency contends that there was no finding by the Arbitrator "that the selecting official would have selected [the] grievant, but for the Agency's actions[.]" Id. at 9.

The Agency also contends that the Arbitrator erred in concluding that the performance ratings of the applicants were not properly considered by the selecting official. The Agency contends that the Arbitrator "ignore[d]" two important facts. Id. at 10. First, the Agency contends that the selectee "was fully eligible for selection based, in part, on a performance rating of 'exceeds fully successful.'" Id. Second, the Agency contends that the recommending official "had first-hand information and knowledge . . . of all the applicants" and that, therefore, "due weight was . . . given" to all the materials submitted in connection with the promotion action. Id. The Agency submitted post-hearing affidavits from the recommending official and the selecting official in support of its contentions.

B. The Union's Opposition

The Union objects to the submission of the affidavits of the recommending and selecting officials. The Union concludes that these submissions constitute an "attempt to relitigate the Arbitration hearing without the Union having the opportunity to cross examine." Opposition at 2.

The Union asserts that, although it "is not pursuing the one Unfair Labor Practice (ULP) and the Attorney fees," it "is pursuing the ULP, against the Agency in denying information[.]" Id. The Union asserts that the Agency's failure to provide the information when it was requested is a "clear violation of [section] 7114(b)(4)" of the Statute. Id. at 25. The Union contends that the Authority should find that the Agency's failure to timely provide the information requested constituted an unfair labor practice and that the Agency should be "compel[led] . . . to post on all their bulletin boards, that in the future, they will not violate" the Statute. Id.

The Union argues that the Arbitrator did not substitute his judgment for that of the selecting official. The Union concludes that "[a]ll the Arbitrator did was apply the numbers (kept by the Agency) to goals (set by Agency) and found that [the selectee] could not be eligible for promotion" because he did not meet the standards for his grade at that time. Id. at 6. The Union also argues that the Arbitrator properly concluded that the performance ratings of the applicants were not properly considered by the selecting official.

IV. Analysis and Conclusions

A. The Union's Exception

We reject the Union's exception to the Arbitrator's failure to find that the Agency violated section 7114(b)(4) of the Statute when it failed to timely provide the Union with all the information necessary to process the grievance in this matter, and to the Arbitrator's failure to require a posting by the Agency.

The Authority's Rules and Regulations provide that the time limit for filing an exception to an arbitrator's award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R.  2425.1(b). If an award is served on the parties by mail, 5 days are added to the time period for filing exceptions pursuant to 5 C.F.R.  2429.22. In this case, the Arbitrator's award was served on the parties on November 22, 1988. Therefore, presuming that the award was served by mail, any exception had to be filed with the Authority no later than December 27, 1988. The Union's exception, which was included in its opposition to the Agency's exceptions, was filed on January 23, 1989. Accordingly, the Union's exception was untimely filed and will be dismissed. See U.S. Small Business Administration and Local 2532 of National Council of Small Business Administration Locals of the American Federation of Government Employees, AFL-CIO, 33 FLRA 28, 33 (1988).

B. The Agency's Exceptions

1. Agency's Affidavits Not Considered

Arbitration awards are not subject to review on the basis either of evidence in existence at the time of the arbitration hearing but not presented to the arbitrator or of evidence that has come into existence only since the arbitration hearing. See AFGE Local 1815 and U.S. Army Aviation Center, 26 FLRA 610, 611 (1987) (the contention that there is new evidence which would lead to a different result from that found by the arbitrator is not a sufficient basis for reviewing an award).

Because the Agency's affidavits contain evidence not presented to the Arbitrator, we have not, therefore, considered those affidavits in reaching our determination in this matter.

2. The Arbitrator Did Not Exceed His Authority

Although the Agency's exceptions are not clear on this point, it appears that, as part of its argument concerning its right to select under section 7106(a)(2)(C) of the Statute, the Agency asserts that the award is deficient because the Arbitrator exceeded his authority. We reject this assertion.

An arbitrator exceeds his or her authority when he or she issues an affirmative order that goes beyond the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See, for example, General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259, 1265-66 (1990). The Agency makes no demonstration that the Arbitrator's award relates to matters which were not submitted to arbitration or encompasses persons who were not included in the grievance. Accordingly, the Agency's assertion that the Arbitrator exceeded his authority provides no basis for finding the award deficient.

3. The Arbitrator's Enforcement of the Parties' Agreement is Not Inconsistent With Section 7106(a)(2)(C)

The Agency's argument that the award violates its right to select under section 7106(a)(2)(C) of the Statute because "no finding was made by the Arbitrator that the selecting official would have selected [the] grievant, but for the Agency's actions[]" is misplaced. Exceptions at 9.

The Arbitrator did not direct that the grievant be promoted. Instead, the Arbitrator directed only that the selection action be rerun. It is well established that where an arbitrator finds that a selection action did not conform to applicable requirements of law or a collective bargaining agreement, the arbitrator may order that the action be rerun. See, for example, Pennsylvania National Guard and Association of Civilian Technicians, 35 FLRA 478, 490 (1990) (Pennsylvania National Guard).

In this case, it is not disputed that the parties' agreement requires that employees be rated at least fully acceptable in all critical elements in order to demonstrate ability to perform higher level work and that performance evaluations be considered and weighed during the selection portion of the promotion process. Based on an evaluation of the evidence presented at the arbitration hearing and his interpretation of these provisions, the Arbitrator concluded that "the evidence does not permit a positive finding that the Agency gave due consideration to annual performance ratings," as required by the parties' agreement as well as applicable regulations. Award at 14-15. The Agency does not assert, and there is no basis on which to conclude, that the relevant portions of the parties' agreement are not enforceable. See, for example, American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1114, 1118-20 (1990) (proposal requiring performance appraisal system to be the principal source of performance information in personnel actions did not interfere with management rights or other law or regulation).

As the Arbitrator found that the Agency did not conform to applicable requirements of the parties' agreement, the Arbitrator's award that the action be rerun is not deficient as contrary to section 7106(a)(2)(C) of the Statute. See Pennsylvania National Guard at 490. Accordingly, the Agency's exception provides no basis for finding the award deficient.

4. The Award Draws Its Essence From the Parties' Agreement

The Agency contends that the Arbitrator erred in concluding that the Agency did not give due consideration to the applicants' performance ratings. We construe this contention as an assertion that the award fails to draw its essence from the parties' agreement.

For an award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 35 FLRA 1307, 1309 (1990) (Defense Mapping).

As noted previously, it is undisputed that the parties' agreement requires the Agency to consider applicants' performance evaluations in determining whether to select those applicants for positions. The Arbitrator interpreted the applicable provisions of the parties' agreement to require that "due consideration" be given to applicants' performance evaluations.

The Agency has not demonstrated that the Arbitrator's interpretation of the parties' agreement is irrational, unfounded, or implausible. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement. Instead, the Agency's assertion constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement.

As such, it provides no basis for finding the award deficient. See, for example, Defense Mapping at 1310.

5. The Award Is Not Based on Nonfacts

The Agency contends that (1) the selectee's performance rating made him fully eligible for selection, (2) the recommending official had personal knowledge of all the applicants, and (3) the recommending official's rating of the selectee was based on mitigating factors. The Agency alleges that these facts negate the Arbitrator's conclusion that the selection may have been made on the basis of misleading information or without all the pertinent information. We construe this contention as an assertion that the award is based on nonfacts.

To show that an arbitrator's award is deficient because it is based on a nonfact, the asserting party must show that the central fact underlying the award is concededly erroneous, a gross mistake of fact, and that but for the arbitrator's reliance upon such fact, a different result would have been reached. See, for example, Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council, 34 FLRA 230 (1990).

The Arbitrator concluded, on the basis of his interpretation of the parties' agreement as well as the evidence presented at the arbitration hearing, that he was unable to make "a positive finding that the Agency gave due consideration to [the applicants'] annual performance ratings[.]" Award at 14-15. The Agency has not demonstrated that the matters excepted to constitute the central fact or facts on which the award is based. That is, the Agency has not shown that even if the Arbitrator agreed with the Agency's assertions, the Arbitrator necessarily would have reached a different conclusion.

In our view, the Agency merely is disagreeing with the Arbitrator's over