38:1170(92)AR - - HHS, SSA, Southeastern Program Service Center and AFGE Local 2206 - - 1990 FLRAdec AR - - v38 p1170



[ v38 p1170 ]
38:1170(92)AR
The decision of the Authority follows:


38 FLRA No. 92

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

SOUTHEASTERN PROGRAM SERVICE CENTER

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2206

(Union)

0-AR-1794

DECISION

December 21, 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 Anthony J. Sabella 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 exceptions.

The Arbitrator denied a grievance disputing the grievant's performance rating for one job task.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Consequently, we will deny the exceptions.

II. Background and Arbitrator's Award

A grievance was filed disputing an employee's performance rating for Generic Job Task (GJT) 5 (Researches questions and problems). The grievant received a rating of Level 2 for GJT 5 and sought to have that rating raised to Level 3. The parties exhausted the grievance procedure without resolving the dispute and the matter was submitted to arbitration.

The grievant argued before the Arbitrator that his Level 2 rating was "inconsistent with the ratings received in GJT 111 (accuracy) in which he was rated Level 3 and in GJT 117 (production) in which he was rated Level 4." Arbitrator's Award at 3. In response to this argument, the Agency contended that "each GJT 'stands alone' and must be considered individu[a]lly." Id.

With respect to his performance, the grievant argued that "during the rating period he very seldom conferred with his technical assistant or with his peers" and that "the district office did not return any of his work as erroneous." Id. at 3-4. In this regard, the "grievant was supported by two of his peers and one technical assistant." Id. at 4. The Agency maintained that "personal observation, feedback from the technical assistant and other sources were the bas[e]s for the [grievant's] rating[.]" Id.

The Union argued that the issue at arbitration was "whether the appraisal rating was improper[,]" while the Agency contended that the issue was "whether the appraisal rating violated the Agreement." Id.

The Arbitrator stated that "[t]his grievance involves the application of standards and not the Agency's right to establish standards." Id., citing Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA). The Arbitrator noted that, under SSA, "when an arbitrator finds that [] management has not applied the established standards or has applied them in violation of law, regulation, or the provisions of the collective bargaining agreement, the arbitrator may cancel the rating." Id. The Arbitrator further noted that "[w]hen the arbitrator is able to determine on the basis of the record presented what the rating of the grievant's work would have been[,] . . . the arbitrator may direct management to grant the grievant that rating." Id. at 4-5. However, the Arbitrator continued, "[i]f the record does not enable the arbitrator to determine what the grievant's rating would have been, the arbitrator should direct that the grievant's work . . . be reevaluated by management as appropriate." Id. at 5.

The Arbitrator noted that Article 21 of the parties' agreement provides that each bargaining unit employee is to receive a performance appraisal "based on a comparison of the employee's performance with the standards and elements established for the appraisal period." Id. at 2. As the grievant contended that he should have received a rating of Level 3 for GJT 5 rather than a rating of Level 2, the Arbitrator examined the standards for Level 2 and Level 3 and noted the following differences: (1) Level 2 for GJT 5 requires "the employee to independently resolve both routine and complex issues without assistance from peers and with little consultation with technical assistants"; (2) Level 3 requires that "the independent resolution is without assistance from peers and with almost no consultation with technical assistants"; (3) Level 2 requires the employee to "normally" respond quickly and accurately to questions on technical procedures while Level 3 requires the employee to "consistently" respond to such questions; and (4) the "Level 2 and Level 3 standards for providing 'clear and comprehensive instructions' and 'complete feedback to [the] supervisor for quality improvement' differ only in degree[,]" with "Level 2 setting it at 'normally' and Level 3 at 'consistently.'" Id. at 3.

The Arbitrator found that "the record has been searched for elements of prejudice, discrimination, disparity of treatment" but concluded that "none were found or suggested." Id. at 5. The Arbitrator also concluded that "the record herein does not show a violation of law, regulation or the collective bargaining agreement." Id. Consequently, the Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union

The Union argues that the Arbitrator's award is deficient because it "does not draw its essence from the collective bargaining agreement and exceeds the [A]rbitrator's authority[.]" Union's Exceptions at 1-2.

In support of its argument that the award does not draw its essence from the parties' agreement, the Union contends that the Arbitrator "has not confined his decision to the agreement." Id. at 3. Specifically, the Union notes that Article 25, Section 5G of the parties' agreement states that: "'If the arbitration award is unclear to either party, the award shall be returned to the arbitrator for clarification.'" Id. According to the Union, it asked the Arbitrator to clarify his award but "[n]o response has been received as of the date of [its exceptions]." Id.

In support of its argument that the Arbitrator exceeded his authority, the Union states that "[n]o provisions of Article 25, Section 7 support the actions of [the] Arbitrator[.]" Id. In this regard, the Union notes that when the Arbitrator requested that the parties file a short brief, it "advised the Arbitrator that Article 25, Section 7 [of the parties' agreement, entitled] 'Expedited Arbitration Procedures[',] did not provide for briefs." Id. at 2. Even so, the Union notes, management official George Sedberry filed a brief. The Union contends that "this management submission, which was used as evidence in the case[,] should be provided to the [U]nion." Id. The Union objects to "the permissiveness of [the] Arbitrator" in "accept[ing] correspondence from Mr. Sedberry" and in permitting "George F. Sedberry's intervention into the Arbitrator[']s process" because Mr. Sedberry was not the duly authorized Agency representative in the case. Id. at 3. The Union notes that "[n]owhere in his award does [the Arbitrator] mention Mr. Sedberry" and asserts that the Arbitrator "had no business discussing this case 'ex parte' with Mr. Sedberry[.]" Id.

The Union also notes that while the Agency relied on "personal observations, feedback from the technical assistant and other sources" to determine the grievant's rating, "[t]here was no documentation of personal observation, no documentation of feedback from the technical assistant[,] nor were there any proofs from other sources." Id. at 2.

The Union further argues that the Arbitrator's "decision to exclude [a witness's] testimony and his failure to explain why he excludes it, does not reflect a consideration of the rights of the grievant, nor the rights of the exclusive representative." Id. at 3, Attachment 5 at 1. According to the Union, "[h]ad the Arbitrator considered these facts, we believe he would have seen the need to review his award." Id. Because the Arbitrator omitted the name of the witness from the award and thereby excluded his testimony, the Union contends that the grievant's performance appraisal was not "'based on a comparison of the employee's performance with the standards [and] elements established for the appraisal period.'" Id. at 4, quoting Article 21 of the parties' agreement.

B. The Agency

The Agency argues that the Union's exceptions fail to comply with the Authority's Rules and Regulations and, therefore, should be dismissed. Specifically, the Agency states that "the attachments referred to in [the Union's exceptions] were not furnished" and "therefore, a complete copy of the exception[s] has not been served on the [A]gency." Agency's Opposition at 1. The Agency further notes that section 2429.27(b) of the Authority's Rules and Regulations requires that service be made by certified mail or in person. As it was served with the Union's exceptions by regular mail and as the Authority requires "strict compliance with its procedures[,]" the Agency contends that the exceptions should be dismissed. Id.

As to the merits of the Union's exceptions, the Agency argues that the Union has not provided a substantive basis for finding the award deficient and that the exceptions constitute mere disagreement with the Arbitrator's findings of fact and reasoning. Id. at 5, 6.

With respect to the Union's argument that the award fails to draw its essence from the parties' agreement, the Agency contends that the Union's exception "is directed to a request for clarification of an award, and not to the decision rendered in the particular case." Id. at 3. Because an "exception can only be filed to an 'award[,]' the Agency asserts that this ground for review "must be dismissed for failure to provide a ground[] for acceptance of the petition" under 5 C.F.R. § 2425. Id. The Agency also notes that, contrary to the Union's assertion, the parties' agreement "does not require that an arbitrator respond to a request for clarification within a specified time limit[.]" Id.

As to the contention that the Arbitrator exceeded his authority by asking for a brief from the parties and by allowing the Agency to submit a theory of the case, the Agency argues that "[t]he parties have historically not followed the explicit provisions of the National Agreement and have modified practices to suit their mutual needs." Id. at 4. In this regard, the Agency notes that "[t]he parties do not follow the contract language requiring two hearings per day or that arbitrator decisions be made within 48 hours." Id. Therefore, the Agency maintains that the Arbitrator in this case "was certainly within his authority to request a 'theory of the case' and the [U]nion had an opportunity to comply." Id.

Citing Authority precedent, the Agency further argues that the telephone conversation between the Arbitrator and the Agency's labor relations specialist, Mr. Sedberry, "was for the purpose of logistical clarification" and that such contacts "are not 'ex parte' contacts." Id. at 4-5. Finally, the Agency notes the Union's contention that the testimony of a witness was improperly excluded. According to the Agency, "[w]hat the [U]nion is alluding to is that the [A]rbitrator did not list [the witness's] name . . . in the body of his decision." Id. at 5. As the Arbitrator "clearly stated in his decision that his decision was based 'upon the entire record[,]'" the Agency argues that the Union's contention "is without foundation." Id.

IV. Procedural Matters

We note the Agency's assertion that the Union's exceptions should be dismissed because the Agency was never served with the attachments to the exceptions. On October 16, 1989, the Union was directed by the Authority to serve copies of the attachments to its exceptions on the Agency and to file a statement of service with the Authority by October 26, 1989. The Authority did not receive a response from the Union to the October 16, 1989 order. On October 17, 1990, the Authority issued an order directing the Union to show cause why its exceptions should not be dismissed for failure to timely comply with the Authority's October 16, 1989 order. On October 30, 1990, the Union filed a response to the show cause order and enclosed a statement of service indicating that the Agency had been served with a copy of the attachments to the Union's exceptions on October 30, 1989. The Agency filed a submission with the Authority on November 5, 1990 requesting that the Authority dismiss the Union's exceptions "[f]or all the reasons previously submitted[.]"

On review of all of these submissions, we conclude that, in the circumstances of this case, we will consider the Union's exceptions. In particular, we note that the Agency has not demonstrated that it was harmed by the Union's alleged failure to serve the attachments.

We also note the Agency's assertion that the Union's exceptions should be dismissed because the exceptions were served on the Agency by regular mail rather than by certified mail or in person. We will not dismiss the exceptions, however, because the Agency acknowledges that it received them. See U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 35 FLRA 316, 320 (1990).

V. Analysis and Conclusions

For the following reasons, we find that the Union has not established that the award is deficient because: (1) the

award does not draw its essence from the parties' collective bargaining agreement; or (2) the Arbitrator exceeded his authority. Accordingly, we will deny the exceptions.

For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990).

The Union has not demonstrated that the Arbitrator's failure to clarify the award pursuant to the parties' agreement renders the award deficient under any of the tests set forth above. Further, we note that section 7122(a) of the Statute provides that parties to arbitration may file exceptions to arbitration awards. As the Union's argument on the Arbitrator's failure to clarify the award addresses an issue separate from the Arbitrator's award, we find that it does not state a ground on which the Authority will find an award deficient under section 7122(a) of the Statute.

We also reject the Union's argument that the Arbitrator exceeded his authority by: (1) rendering his decision even though there was "no documentation of personal observation, no documentation of feedback from the technical assistant[,]" and no proof from other sources; (2) excluding a witness's testimony by omitting the witness's name from the award; (3) improperly communicating with an Agency official; and (4) permitting the parties to file a short brief. Union's Exceptions at 2, 3, Attachment 5 at 1.

An arbitrator exceeds his or her authority by resolving an issue not submitted to arbitration or awarding relief to persons not encompassed within the grievance. See, for example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 221-22 (1990).

The Union does not assert that the Arbitrator resolved an issue not submitted to arbitration or awarded relief to persons not encompassed within the grievance. Rather, with respect to its assertion that there was no documentation of evidence, the Union is simply disagreeing with the Arbitrator's findings of fact and evaluation of the evidence and testimony presented at the hearing. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 35 FLRA 1175, 1178 (1990). Further, as to the Union's assertions that there was no documentation of evidence and that the Arbitrator omitted a witness's name from the award, we note that the Arbitrator stated that he based his decision on the entire record in this case. Arbitrator's Award at 1, 5. An arbitrator's failure to specify or discuss particular items of evidence that were considered and on which the award is based does not render an award deficient. See, for example, U.S. Department of Veterans Affairs, Medical Center, Memphis, Tennessee and National Association of Government Employees, Local R5-66, 34 FLRA 893, 896 (1990).

With respect to the Union's contention that the Arbitrator improperly communicated with an Agency official, the Union has not established that the communication was impermissible. We find that the Union's argument is not supported by "any substantiation that the Arbitrator's award was procured by corruption, fraud, or undue means; that there was partiality or corruption on the part of the Arbitrator; or that the Arbitrator was guilty of misconduct by which rights of any party were prejudiced[.]" Food and Drug Administration, Cincinnati District Office and American Federation of Government Employees, Local 3831, AFL-CIO, 34 FLRA 533, 535 (1990), quoting Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18, 19 (1981). As there is no basis in the record on which to conclude that the communication was improper, the Union's argument provides no basis for finding the award deficient.

We note that the Union contends that no provisions of the parties' agreement support the actions of the Arbitrator in communicating with an Agency official. However, such a contention does not establish that the Arbitrator exceeded his authority, but constitutes disagreement with the Arbitrator's interpretation of the parties' agreement and does not state a ground on which the Authority will find an award deficient under section 7122(a) of the Statute. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1346, 35 FLRA 1180, 1186 (1990) (HHS).

As to the Union's argument that the Arbitrator improperly permitted the parties to file a short brief because the parties' agreement does not provide for briefs, we note that in interpreting parties' collective bargaining agreements, arbitrators may use past practice. See American Federation of Government Employees, Local 1917 and Department of Justice, Immigration and Naturalization Service, 33 FLRA 412, 415 (1988). The Agency notes that the parties "have historically not followed the explicit provisions of the National Agreement and have modified practices to suit their mutual needs." Agency's Opposition at 4. For example, in this case the parties did not require the Arbitrator to issue his decision within 48 hours. Id.; Arbitrator's Award at 1, 5. We conclude that the Union's argument constitutes disagreement with the Arbitrator's interpretation of the parties' agreement and does not state a ground on which the Authority will find an award deficient. See, for example, HHS.

To the extent that the Union argues that it was denied a fair hearing when the Arbitrator permitted the parties to file briefs or allegedly omitted testimony, we reject that argument. 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, U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Allenwood, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148, 35 FLRA 827, 829 (1990). An arbitrator has considerable latitude in the conduct of a hearing, however, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See, for example, U.S. Department of the Army, Army Reserve Personnel, St. Louis, Missouri and American Federation of Government Employees, Local 900, 35 FLRA 1200, 1205 (1990) (U.S. Department of the Army).

We conclude that the Union has not demonstrated that the Arbitrator acted improperly so as to deny the Union