44:0287(24)AR - - OPM, Central Office and AFGE Local 32 - - 1992 FLRAdec AR - - v44 p287
[ v44 p287 ]
The decision of the Authority follows:
44 FLRA No. 24
FEDERAL LABOR RELATIONS AUTHORITY
U.S. OFFICE OF PERSONNEL MANAGEMENT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 10, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James P. Whyte 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 alleging that the Agency violated the parties' collective bargaining agreement in appraising the grievant's performance. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, an insurance benefits claims examiner, received an overall performance rating of "fully successful" in his performance appraisal for the period November 1988 through October 1989. A grievance was filed disputing the appraisal and when the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue before him as follows:
Did Grievant's Performance Evaluation for November, 1988 - October, 1989, violate Article 6 [of the parties' agreement]? If so, what remedy is appropriate?
Award at 5.(1)
Before the Arbitrator, the Union contended, as relevant here, that the Agency violated the parties' agreement by: (1) failing to provide the grievant with a copy of his performance standards at the beginning of the appraisal period; (2) basing the appraisal on instances of performance occurring outside the appraisal period and on a reprimand which was withdrawn; (3) failing to counsel the grievant regarding certain performance problems; and (4) rating the grievant in an arbitrary manner.
The Arbitrator concluded that "[t]he evidence presented at hearing show[ed] no violation" of the parties' agreement or applicable regulations. Id. at 10. According to the Arbitrator, the grievant was appraised against established standards and had been counselled about performance problems prior to the appraisal. Among other things, the Arbitrator credited the testimony of the grievant's supervisor that the grievant had failed to perform certain duties in a courteous manner and found the Union's arguments on this point "mere speculation." Id. at 9. In addition, the Arbitrator found that the Union had not proved that the grievant was "the victim of disparate treatment . . . ." Id. at 10. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union
The Union asserts that the award is "inconsistent with law, rule and regulations." Exceptions at 1. The Union states that "[i]t is still [its] position that the Agency violated Article 6, Sections 1, 2, 4, 5, 7, and 8 of the Collective Bargaining Agreement." Id. at 3. The Union also asserts that, in making certain findings, the Arbitrator disregarded testimony of Union witnesses at the Arbitration hearing and, in making other findings, indicated "a biased opinion . . . ." Id. at 5. Finally, the Union argues that, although the grievant would have disputed certain testimony of Agency witnesses, "[b]ecause the Arbitrator was in a hurry to catch a return flight back home by noon, the Union did not have an opportunity to put the [g]rievant back on the stand . . . ." Id. at 4.
B. The Agency
The Agency claims that the grievant's disputed performance appraisal was "proper and . . . the result of a fair and uniform evaluation process." Opposition at 6. According to the Agency, the Union's exceptions do not demonstrate that the award is deficient.
IV. Analysis and Conclusions
A. Law, Rule, and Regulation
As noted previously, the Union claims that the award is inconsistent with "law, rule and regulations." Exceptions at 1. However, the Union cites no law, rule, or regulation with which the award allegedly conflicts and no such inconsistency is apparent to us. Accordingly, this exception provides no basis for finding the award deficient. For example, U.S. Department of the Treasury, United States Mint and American Federation of Government Employees, Mint Council, Local 1023, 43 FLRA No. 123, slip op. at 4 (1992).
B. Essence Of The Parties' Agreement
We construe the Union's argument that the Agency violated the parties' agreement in appraising the grievant as an assertion that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this ground, a party 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 the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, id.
The Arbitrator concluded, based on his interpretation and application of Article 6 of the parties' agreement, that the Agency did not violate that article in appraising the grievant's performance. The Union has not established that the award is irrational, unfounded, implausible, or evidences a manifest disregard for the agreement. In our view, this exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement and, as such, does not demonstrate that the award fails to draw its essence from the agreement. For example, id.
C. Fair Hearing
The Union argues that, in making certain findings, the Arbitrator disregarded testimony of Union witnesses. The Union also argues that, although the grievant would have disputed the testimony of certain Agency witnesses, the Union improperly was denied the opportunity to elicit the grievant's testimony on this point "[b]ecause the Arbitrator was in a hurry to catch a return flight back home . . . ." Exceptions at 4. We construe these arguments as assertions that the Arbitrator failed to conduct a fair hearing.
The Authority will find an award deficient when it is established that an arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. For example, U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1178 (1990) (SSA, Southeastern). 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. For example, Veterans Administration and VA Medical Center Register Office and American Federation of Government Employees, Local 1509, 34 FLRA 734, 738 (1990).
We conclude, based on the award and the record as a whole, that the Union has not demonstrated that the Arbitrator denied it a fair hearing. In particular, the Union has not shown that the Arbitrator acted improperly so as to deny the Union an opportunity to adequately present its case or to prevent it from submitting pertinent and material evidence. See SSA, Southeastern, 38 FLRA at 1178. We note that the Arbitrator heard and considered testimony from the grievant concerning the issues in dispute. The Union has not shown that the Arbitrator improperly refused to hear pertinent additional testimony from the grievant or that any such refusal affected the fairness of the overall arbitration proceeding. See U.S. Department of the Air Force, Griffiss Air Force Base, New York and American Federation of Government Employees, Local 2612, 39 FLRA 471, 474 (1991).
In our view, the Union's arguments constitute mere disagreement with the manner in which the Arbitrator conducted the arbitration hearing and with the Arbitrator's evaluation of the evidence. As such, this exception provides no basis for finding the award deficient. For example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA No. 9, slip op. at 6-7 (1992).
The Union asserts that certain arbitral findings indicate "a biased opinion on the Arbitrator's . . . part." Exceptions at 5.
To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be