40:0644(58)AR - - HHS, SSA, Region VI, Dallas, TX and AFGE Local 1336 - - 1991 FLRAdec AR - - v40 p644
[ v40 p644 ]
The decision of the Authority follows:
40 FLRA No. 58
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 filed by the Union pursuant to 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 Union filed a grievance on behalf of the grievant, alleging that she had been rated improperly. The Arbitrator found that the grievance was arbitrable and ruled that the Agency did not improperly appraise the performance of the grievant. The Arbitrator denied the grievance.
For the reasons stated below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is a GS-12 Social Insurance Specialist Program Analyst. The Union filed a grievance concerning the grievant's annual performance rating for the period from October 1, 1988, through September 30, 1989. The Union asserted that the grievant was improperly rated with respect to Generic Job Tasks (GJTs) 3, 61, and 68 because the grievant had "filed a grievance against her previous appraisal and had filed several EEO and unfair labor practice charges during the appraisal year." Award at 2. The grievant requested that GJT's 3 and 61 be raised to "Excellent" and GJT 68 be raised to "Outstanding."
Before the Arbitrator, the Agency asserted that the grievance was not arbitrable because the grievant had filed various EEO and unfair labor practice charges based on bias and discrimination and had, thereby, elected to litigate those issues in an alternate forum and was precluded from raising them under the parties' negotiated grievance procedure. The Arbitrator rejected the Agency's argument and determined that the grievance "is arbitrable because it involves an independent and substantial question about the propriety of [g]rievant's final annual appraisal, a matter which none of the other and earlier charges could have considered or disposed of." Id. at 3. No exceptions were filed to this finding.
The Arbitrator stated that the substantive issue before him was whether the Agency "improperly appraise[d] the performance of the [g]rievant [with] respect to GJT's 3, 61 and 68 for the appraisal period of October 1, 1988 to September 30, 1990? If so, what is the proper remedy?" Id. at 2.(*) The Arbitrator noted that there was no question that "if any personal animosity or bias of the rater [the grievant's supervisor] or the reviewer [the second-line supervisor] played a part in [g]rievant's 1989 appraisal the basis for some sort of remedy would have been made out." Id. at 3.
The Arbitrator found that the evidence did not establish that the grievant's appraisals were conducted improperly or that the grievant was improperly rated.
The Arbitrator found that the incident on which the Union based the grievant's claim of "personal animosity on the part of her [s]upervisor/rater is ancient history." Id. In this regard, the Arbitrator found no independent evidence to support the grievant's claim that the supervisor held a grudge against the grievant for the grievant's role in the supervisor's transfer to another office in 1977. The Arbitrator found that although the supervisor "was the [g]rievant's rater in the flawed 1988 appraisal, he was [in] no way connected with the activities of the previous [s]upervisor whose bad conduct was the causative factor in the improper appraisal for that year." Id. The Arbitrator also found no indication in the record that the reviewer had any animus against the grievant.
The Arbitrator further found no indication of bias or animus on the part of the grievant's supervisors by virtue of: (1) the grievant's "isolation" from her fellow employees; (2) the supervisor's approval of a training assignment requested by the grievant; and (3) the supervisor's failure to respond to the grievant's "blizzard of memos." Id. at 4. The Arbitrator concluded that, based on all the evidence presented, "it has not been demonstrated that the judgments and evaluations . . . made by [the] [g]rievant's [s]upervisor/rater and her reviewer in respect to the three critical GJT's in issue were improperly arrived at or that they were without some justification or rational basis." Id. at 5.
Finally, the Arbitrator rejected the Union's claim that the grievant's periodic performance reviews were improperly conducted because they did not contain a numerical rating on the employee's status on any GJT. The Arbitrator determined that nothing in the parties' agreement "requires . . . a provisional or illustrative numerical rating for any GJT at a review . . . ." Id. at 6. The Arbitrator found that the parties' agreement only requires a summary of the employee's "progress in comparison to the performance expectations, any problems encountered or anticipated, any corrective actions taken or planned and any changes in the performance expectations[.]" Id. The Arbitrator concluded that this does not require "an explicit prognostication that a rating may be lowered at the end of the rating year." Id.
Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator's award does not draw its essence from the parties' agreement and is contrary to law, rule, and regulation. The Union argues that the Arbitrator's finding that the parties' agreement does not provide for a numerical rating for any GJT at a review is "contrary to the requirements of the law and its attendant regulations and the contract between the agency and the union." Exceptions at 3. In this regard, the Union argues that the Arbitrator's position "denies substantive rights to employees to know how they will be rated during the appraisal year in accordance with 5 U.S.C. [§] 4302(b)(3)." Id. The Union states that section 4302(b)(3) provides for "evaluating each employee during the appraisal period" on the "standards by which their performance is to be appraised before being evaluated and to be evaluated under those elements and standards." Id. at 2 (emphasis supplied by Union).
The Union contends that the Arbitrator exceeded his authority because he improperly stated the issue before him. The Union argues that the Arbitrator lacked the jurisdiction to decide the appraisal rating between the period of October 1, 1989, through September 30, 1990, because this rating period was not submitted by the Agency or the Union for resolution. The Union argues that the only issue before the Arbitrator was the appraisal rating period of October 1, 1988, through September 30, 1989. Therefore, the Union asserts that the Arbitrator's award is deficient.
The Union also argues that the Arbitrator misstated the fact that the rating supervisor of the October 1, 1987, through September 30, 1988, appraisal of the grievant was not the same individual who rated the grievant for the October 1, 1988, through September 30, 1989, appraisal year. The Union argues that this fact establishes that the conduct complained of is identical in both grievances which concerned the lowering of the grievant's 1988 rating from one year to the next year after the successful appeal of the 1988 rating. Therefore, the Union contends that the essential fact underlying the award is erroneous.
The Union contends that the Arbitrator's conclusions that the grievant was "in total control of a hostile work environment" is "unsupported by the facts in this case." Id. at 6. The Union argues that if the Arbitrator recognized the fact that the grievant was not in control of her work environment, "he could have reached a different conclusion based on the record as a whole." Id.
The Agency asserts that the Arbitrator correctly found that there is nothing in the parties' agreement which requires a numerical rating for any GJT at a progress review. The Agency states that the grievant was provided progress reviews in March, April, and August of 1989. It contends that these progress reviews were not in violation of the parties' agreement, law, rule, or regulation.
The Agency argues that the Arbitrator did not exceed his authority by deciding an issue not before him. The Agency maintains that the Arbitrator made "obvious typographical errors in his decision when he referred to the appraisal rating period as being from October 1, 1988 to September 30, 1990." Opposition at 4. The Agency notes that the Arbitrator made reference to the appropriate appraisal period in the body of the decision.
The Agency contends that the Arbitrator did not misstate a fact. The Agency states that although "the grievant's rater for both the [fiscal 1988] and [fiscal 1989] appraisal periods [was the same person] he did not become the grievant's supervisor until late in August 1988." Id. at 5 (emphasis in original). The Agency notes that this supervisor supervised her only for "approximately 35 days in [fiscal year] . . . 1988." Id. In this regard, the Agency notes that "[t]he supervisor referenced in the arbitration [award] for [fiscal 1988] was [a different person]." Id.
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. The Union has not established 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. Arbitrator's Award Draws Its Essence From the Agreement
The Union argues that the award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award fails to draw its essence from the agreement, the Union must show 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 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 U.S. Department of the Treasury, U.S. Customs Service, New York, New York and National Treasury Employees Union, 39 FLRA 278, 284 (1991).
The Union has not demonstrated that the Arbitrator's award is deficient under any of these tests. The Arbitrator's award was based on his interpretation of the agreement as applied to the circumstances in this case. We have no basis on which to conclude that the Arbitrator's interpretation of the agreement is implausible, irrational, or unconnected to the wording of the agreement. As such, the Union has not demonstrated that the award fails to draw its essence from the agreement.
B. The Union Fails to Establish 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 American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 38 FLRA 600, 606 (1990).
The issue before the Arbitrator was whether the Agency improperly appraised the grievant for the 1989 appraisal period. The Arbitrator, in stating the issue before him, inadvertently used the wrong date. We find that this error is not prejudicial to the parties in this case. The background information in the Arbitrator's decision establishes that the issue before the Arbitrator was the propriety of the 1989 performance appraisal. The Arbitrator properly addressed that issue and there is no basis for finding that the Arbitrator exceeded his authority by rendering an award which went beyond the scope of the matter submitted to arbitration.
C. The Arbitrator's Award Was Not Based on a Nonfact
We construe the Union's argument that the Arbitrator based his decision on an essential fact that was erroneous as an argument that he based his decision on a nonfact. We will find an arbitration award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, U.S. Department of the Army, Headquarters XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 36 FLRA 86 (1990) (Headquarters XVIII Airborne Corps).
The Union has not shown that the Arbitrator misstated a fact by finding that "the [s]upervisor [who] was the [g]rievant's rater in the flawed 1988 appraisal . . . was [in] no way connected with the activities of the previous [s]upervisor whose bad conduct was the causative factor in the improper appraisal for that year." Award at 3. Moreover, even if the Union had established that this finding of fact by the Arbitrator was in error, the Union has not demonstrated that this finding was the central fact underlying the award such that the Arbitrator would have reached a different result. See Headquarters XVIII Airborne Corps, 36 FLRA at 90 (union failed to establish that the matter asserted to be clearly erroneous was a central fact underlying the award).
Further, the Union's assertion that the Arbitrator would have reached a different result if he had based his conclusion on the record as a whole constitutes nothing more than disagreement with the Arbitrator's findings of fact and provides no basis for finding the award deficient. See American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1115 (1990) (disagreement with arbitrator's factual findings provides no basis for finding award deficient). In this regard, we note the Arbitrator's finding that "all the other evidence presented . . . has not demonstrated that . . . the three critical GJT's in issue were improperly arrived at or that they were without some justification or rational basis." Award at 5.
D. The Union Fails to Establish That the Award Is Contrary to 5 U.S.C. § 4302(b)
Under 5 U.S.C. § 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. Although the Union alleges that the Arbitrator's award is contrary to that provision, 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). In our view, 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) (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).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ As we find below, it is apparent from the background in the Arbitrator's award that the issue contains an incorrect date. The correct date of the appraisal period was from October 1, 1988, to September 30, 1989.