39:0407(31)AR - - HHS, SSA, Office of Hearings and Appeals and AFGE Local 3615 - - 1991 FLRAdec AR - - v39 p407



[ v39 p407 ]
39:0407(31)AR
The decision of the Authority follows:


39 FLRA No. 31

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3615

(Union)

0-AR-1970

DECISION

February 8, 1991

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 Jonathan E. Kaufman 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 did not file an opposition to the Union's exceptions.

In his award, the Arbitrator denied the grievance of an employee who claimed that he should have received a performance appraisal of "outstanding" instead of "excellent" for generic job task (GJT) 104. The Arbitrator ruled that the grievant had failed to demonstrate that he was entitled to the higher rating. The Union contends in its exceptions that the award is contrary to 5 U.S.C. º 4302(b) and that the Arbitrator ignored evidence, misinterpreted the collective bargaining agreement, and was arbitrary and capricious in making the award. For the following reasons, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a GS-13 paralegal specialist who is responsible for reviewing decisions of administrative law judges on claims for disability insurance. The grievant makes recommendations to the Appeals Council as to whether the decisions should be upheld, reversed, modified, or remanded to the judge. In cases where the judge's decisions are upheld, the grievant prepares a written decision which is reviewed and signed by the Appeals Council.

GJT 104 is one of the two critical elements in the grievant's performance appraisal plan and "is described as 'writes decisions for adjudication.'" Award at 1. For the appraisal period ending September 30, 1988, the grievant received a rating of "outstanding" for GJT 104. In January 1990 the grievant was assigned a new supervisor. The new supervisor gave the grievant a rating of "excellent" for the appraisal period ending September 30, 1989, based on his finding of three errors in 27 different documents prepared by the grievant.

The grievant filed a grievance protesting the rating of "excellent" instead of "outstanding." The grievance was submitted to expedited arbitration. The Union claimed on the grievant's behalf that the grievant was entitled to the higher rating because the three errors were not significant and were the result of new procedures. The Union contended that if all the work products of the grievant were considered, then three errors would not prevent the assignment of the higher rating. The Union also alleged that the grievant received a lower rating than he deserved because he had become a Union representative during the last months of the rating year.

The grievant's supervisor claimed that the errors that the grievant made were significant and because of that he had given the grievant a rating of "excellent" for GJT 104. The supervisor stated that there "was no performance standard for 'outstanding' and it was only given to those employees whose performance was 'rare' and beyond excellent." Id. at 2. The supervisor denied that the grievant's Union activity had anything to do with the rating he received and he stated that "he was unaware of the grievant's Union activity at the time that the appraisal was given." Id. at 3.

The Arbitrator found that the supervisor had properly selected a rating for the grievant and had documented the reasons for selecting the rating in accordance with the provisions of Article 21, Section 6 of the parties' collective bargaining agreement. The Arbitrator stated that the supervisor "selected a rating of excellent for GJT 104 and provided documentation which, in his view, showed that the grievant was performing well but that he made some errors in his work." Id.

The Arbitrator ruled that the grievant failed to demonstrate that he was performing at a higher level. The Arbitrator rejected the grievant's claim that the three errors related to his entire work output for the year rather than to the 27 items examined by the supervisor. The Arbitrator stated that he "was not convinced that the other 776 work products were error free." Id.

The Arbitrator rejected the grievant's claim that he received a lower rating because of his Union activities. The Arbitrator stated that the Union failed to rebut the supervisor's testimony that he was unaware of the grievant's status as a Union representative. The Arbitrator found that there was no evidence "to suggest that [the supervisor], a former member of the AFGE local, was guilty of Union animus." Id. at 4. The Arbitrator denied the grievance.

III. Union's Exceptions

The Union contends that the Arbitrator's award is deficient because: (1) the award is contrary to 5 U.S.C. º 4302(b)(1), (2) and (3); (2) the Arbitrator ignored expert testimony and violated the Federal Rules of Evidence; (3) the Arbitrator did not properly discuss Article 21 of the parties' collective bargaining agreement; and (4) the award is arbitrary and capricious because the Arbitrator "established an unattainable standard" for a rating of outstanding. Exceptions at 1-2. The Union asserts in support of its exceptions that the Arbitrator failed to consider "due process violations" including: (1) lack of authorization for the official who reviewed the appraisal to conduct the second-step grievance conference; (2) "tainted evidence included in the grievant's work product;" (3) incomplete information provided by the Agency to the Union concerning the grievant's work products; and (4) "the Agency's misleading the Union" by indicating that 15 work products were examined but then asserting at the arbitration hearing that 23 work products were examined. Union's Brief at 1-2.

The Union claims that "the Arbitrator failed to consider that 13 of the grievant's 15 work products provided to the Union as documentation of the grievant's rating were reviewed by the Branch Chief after the grievant became involved in Union activities . . . and over 50% (8) of those products were reviewed after the grievant's appointment as a Union steward on August 24, 1989." Id. at 2 (emphasis in original). The Union also asserts that the grievant was subjected to disparate treatment when 27 of his work products were reviewed because another employee received a rating of "outstanding" based on "a single work product" which was prepared several years before the period in question and another employee was rated "outstanding" after review of four work products. Id. at 2-3. The Union maintains that there is evidence to support a finding that the grievant "was rated differently than his peers and co-workers." Id. at 3 (emphasis in original).

The Union contends that the award is deficient because the Arbitrator "refused to carefully weigh expert witness testimony" from the Union's expert witness who testified that the standard for GJT 104 states "writes decisions." Id. The Union states that the Arbitrator made an erroneous finding contrary to that testimony that "decisions were a small part of an analyst's work." Id. at 4 (footnote omitted). The Union maintains that the Arbitrator's failure to give weight to testimony by the expert witness is contrary to the Federal Rules of Evidence.

The Union contends that "[t]he Arbitrator's finding that he 'was not convinced that all the other 776 work products were error free' is arbitrary and capricious." Id. (citation omitted). The Union maintains that there was no evidence submitted to show that there were any errors in those other work products and the Agency did not contend that more than three work products contained errors. The Union also asserts that the Arbitrator "incorrectly interpreted Article 21, section 1 [of the collective bargaining agreement]" by finding that a rating of "outstanding" could be given only when there are no errors. Id. at 4-5. The Union maintains that it is "patently unreasonable" to interpret Article 21 of the agreement in such a manner as to allow the review of part of an employee's work product and the assessment of an error rate based on the partial review without reviewing the entire work product. Id. at 6.

The Union states that the Arbitrator: (1) "improperly weighed the substantial evidence of record;" (2) "capriciously refused to mention the expert witness testimony;" and (3) "did not discuss the inconsistencies in the review process." Id. at 6. Further, the Union contends that the Arbitrator imposed an improper burden on the grievant to prove that he was entitled to a higher rating, which is contrary to the requirement in Article 21 of the agreement "that management must document its measurement of an employee's performance for all levels." Id. at 7.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

A. The Union Fails to Establish That the Award Is Contrary to 5 U.S.C. º 4302(b)(1), (2), and (3)

Under 5 U.S.C. º 4302, agencies are required to establish performance appraisal systems with job elements and performance standards which will, to the maximum extent feasible, permit accurate evaluation of performance on the basis of objective criteria related to the job in question. Section 4302(b)(1), (2), and (3) states that each performance system shall provide for establishing performance standards, communicating to employees the standards established for their positions, and evaluating employees on those standards.

Although the Union alleges that the Arbitrator's award is contrary to that provision of law, the Union has failed to provide any information to substantiate its allegation and to show in what manner the award is contrary to the provision. An arbitrator may properly examine whether management has properly applied an employee's established performance standards and elements. See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987). The Union is only disagreeing with the Arbitrator's conclusion that the grievant was rated properly under the performance standards established for her position. Such an exception fails to establish that the Arbitrator's award is deficient on the ground that it is contrary to law. See, for example, U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 34 FLRA 640 (1990) (Scott AFB) (union failed to show that grievant was entitled to higher rating); Carswell Air Force Base and American Federation of Government Employees, Local 1364, 32 FLRA 789 (1988) (denying exceptions that arbitrator failed to properly evaluate grievant's performance under established standards and Air Force regulations).

Further, the Union's contentions that the Arbitrator failed to consider due process violations constitute mere disagreement with the Arbitrator's findings of fact and with his reasoning and conclusions. Such contentions provide no basis for finding an award deficient. See American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1114 (1990) (disagreement with arbitrator's findings of fact and reasoning and conclusions provides no basis for finding award deficient).

B. The Arbitrator Provided a Fair Hearing

We consider the Union's exceptions concerning the use of an improper burden of proof and failure to apply the Federal Rules of Evidence as contentions that the award is deficient because the Arbitrator failed to provide a fair hearing. The Authority will find an award deficient on the basis that an Arbitrator denied the parties a fair hearing. For example, Veterans Administration, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 898 (1990) (union's claim that arbitrator did not allow all witnesses to testify and did not find the presence of union animus despite testimony to the contrary failed to establish basis for finding award deficient). However, the Union has not shown that the Arbitrator has failed to provide a fair hearing.

We reject the Union's assertion that the Arbitrator imposed an erroneous burden of proof by shifting the burden of proving that the grievant was entitled to a higher rating from the Agency to the Union. Unless a specific standard of proof or review is required by law or the parties' agreement, an arbitrator has authority to establish whatever standard he or she considers appropriate and the award will not be found deficient on that basis. U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 222 (1990) (claim that arbitrator erroneously shifted the burden of proof from the agency to the union provided no basis for finding award deficient because unless a specific burden of proof or review is required, an arbitrator may establish and apply whatever burden the arbitrator considers appropriate). In this case, there has been no demonstration that any specific burden of proof or review was required. Consequently, the Union's exception that the Arbitrator imposed an improper burden of proof on the grievant provides no basis for finding the award deficient.

Similarly, the Union's exception concerning the Arbitrator's failure to comply with the Federal Rules of Evidence fails to show that the award is deficient on the ground that the Arbitrator denied the Union a fair hearing. There is nothing in the record before us to indicate that the Arbitrator acted improperly so as to deny the Union an opportunity to present its case. Compare U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA No. 7 (1991) (award found deficient under standards commonly applied by Federal courts in private sector labor relations cases because the arbitrator denied the union a fair hearing by refusing to consider evidence that was pertinent and material to the issue of whether the suspension of the grievant was for just cause). Arbitrators have considerable latitude in the conduct of hearings 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 U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 869-70 (1990). Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides "adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator." Id. Further, there is no requirement that arbitration proceedings be governed by the Federal Rules of Evidence. See Library of Congress and American Federation of State, County and Municipal Employees, Local 2910, 32 FLRA 330, 332 (1988) (union's assertion that arbitrator used rules of procedure that are contrary to Federal Rules of Evidence by not permitting grievant to impeach the testimony of witnesses provided no basis for finding award deficient). Therefore, we conclude that the Union has failed to show that the Arbitrator failed to conduct a fair hearing.

C. There Is No Showing of Disparate Treatment of the Grievant Because of Protected Union Activity

The Union fails to substantiate its claim that the Arbitrator erred when he found that there was no eviden