43:0223(21)AR - - HHS, SSA and AFGE - - 1991 FLRAdec AR - - v43 p223



[ v43 p223 ]
43:0223(21)AR
The decision of the Authority follows:


43 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-2135

DECISION

November 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Ruth Russell Gray 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 exception.

A grievance was filed alleging that the Agency had not appraised an employee in accordance with the parties' agreement and had not treated the grievant fairly and equitably. The Arbitrator denied the grievance.

For the following reasons, we conclude that the exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The grievant is employed by the Agency as a data review technician. For the appraisal period of October 1, 1988, through September 30, 1989, the grievant received a "3" rating for her performance of two critical elements of her position. For the appraisal year ending on September 30, 1988, the grievant had received a "4" rating for her performance in those same two elements. A grievance was filed over the 1989 ratings on the two elements. The grievance was not resolved and was submitted to arbitration.

The Arbitrator framed the issue as follows:

Was the appraisal issued to [the grievant], Data Review Technician, for the period October 1, 1988 to September 30, 1989 prepared in accordance with the National Agreement between Social Security Administration and AFGE then in effect and the Memorandum of Understanding between the parties dated October 8, 1986, and was she treated fairly and equitably under the Agreement?

Award at 1.

Before the Arbitrator, the Union argued that the grievant's supervisor should have advised her that she was in jeopardy of having her performance rating lowered on the two elements. The Union asserted that the progress reviews the grievant received during the appraisal year at issue contained substantially the same wording as those reviews in previous years when the grievant had received higher ratings. The Union, therefore, maintained that as the two critical elements and performance standards had not changed and as the grievant's performance was described in substantially the same terms as it had been in prior years, the grievant should have received the same level "4" rating in 1989 as she had in the earlier appraisals.

The Arbitrator considered the testimony of both the grievant and her supervisor. The grievant's supervisor testified that he had advised the grievant of the performance expected of her, that he had informed her of the deficiencies in her work, and that he had attempted to help her improve during the relevant rating period. The supervisor also testified to the specific shortcomings that he had noted in the grievant's performance during the appraisal year at issue. The grievant denied that she had been advised of any performance expectations and denied that her work was deficient. The grievant also affirmatively stated that "she did not like the progress review given to her in July 1989" and that she did not receive the same training other employees had received. Id. at 6.

The Arbitrator noted that "[t]he burden of proof was on the [g]rievant and the Union" and that the grievant's testimony "was essentially a denial." Id. at 7. The Arbitrator stated that the grievant's denial was "a defensive posture, not an affirmative proving" of the case and that the grievant's two affirmative claims regarding the July 1989 progress review and training "were not developed." Id. Accordingly, the Arbitrator determined that the Union had not carried its burden of proof and found that the grievant's appraisal was prepared in accordance with the parties' agreement and memorandum of understanding and that the grievant had been treated fairly and equitably.

III. The Union's Exception

The Union asserts that the Arbitrator "refused to admit material and relevant evidence at the hearing. As such, the Arbitrator failed to conduct a fair hearing." Exception at 1. Specifically, the Union states that the Arbitrator refused to admit the grievant's appraisal, and supporting documentation, for the year ending September 30, 1988. The Union argues that the underlying documentation of the earlier appraisal demonstrates how the Agency had applied the performance standards in the past and would show that, although the grievant had essentially the same performance in 1988 and 1989, she received a higher rating in 1988. Accordingly, the Union maintains that, had the earlier appraisal been admitted, it could have demonstrated that the Agency had treated the grievant "in an unfair and inequitable manner" by giving "variant ratings" to the same performance under the same standards. Id. at 2.

The Union also argues that had the earlier appraisal and supporting documentation been placed in the record, the Union would have been able "to discredit the testimony of the supervisor" because "this evidence clearly shows that the supervisor acted arbitrarily in applying the performance standards" and that he had not documented the "alleged decline in [the grievant's] performance." Id. at 2-3.

The Union concedes that the Arbitrator "correctly note[d] that the burden of proof in this case [was] on the Union" but argues that the excluded documents were "an integral and vital part of proving the Union's contention that the Agency treated the grievant in an unfair and inequitable manner and that the Agency violated the [a]greement between the parties." Id. at 3.

IV. Analysis and Conclusions

The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991) (arbitrator's acknowledged failure to give "serious consideration" to the union's position constituted failure to conduct a fair hearing). However, an arbitrator has considerable latitude in the conduct of a hearing, 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, Veterans Administration and VA Medical Center Register Office and American Federation of Government Employees, Local 1509, 34 FLRA 734 (1990).

In this case, the Arbitrator noted the Union's contention that the grievant had earlier received higher ratings for substantially similar performance and that, therefore, the two lowered ratings in 1989 violated the parties' agreement. However, the Arbitrator concluded, notwithstanding the existence of the earlier appraisal which the Arbitrator refused to admit into the record, that the grievant's general denials as to the existence of work deficiencies failed to demonstrate that she had been inappropriately appraised and that the grievant's bare assertions that she was dissatisfied with her progress review and her training did not demonstrate that she had been treated unfairly or inequitably. Furthermore, in view of these findings by the Arbitrator, the Union fails to establish that evidence of the grievant's performance appraisal for the year ending September 30, 1988, was pertinent and material. The Authority has repeatedly indicated that the prior receipt by a grievant of a higher performance rating, alone, cannot establish what the grievant's rating would have been for the disputed appraisal period. For example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 237, 240 (1990) (arbitrator's ruling that the grievant's level 4 rating be carried forward was found deficient because it was not based on a determination of what the grievant's rating woul