46:0485(43)AR - - GSA, Region 2, NY, NY and AFGE Local 2431 - - 1992 FLRAdec AR - - v46 p485



[ v46 p485 ]
46:0485(43)AR
The decision of the Authority follows:


46 FLRA No. 43

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

GENERAL SERVICES ADMINISTRATION

REGION 2

NEW YORK, NEW YORK

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2431

(Union)

0-AR-2278

_____

DECISION

November 5, 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 Leonard Irsay filed by the Agency 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 Union filed an opposition to the exceptions.

The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement in appraising the grievant's performance and, as a remedy, remanded the matter to the Agency for reevaluation. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a contract specialist, received an overall performance rating of fully successful for the appraisal period ending February 28, 1991. A grievance was filed over the rating and, when the grievance was not resolved, it was submitted to arbitration. As relevant here, the Arbitrator framed the issue before him as follows:

Whether the Agency violated the national agreement, law or applicable rules and regulations when it gave [the grievant] an annual performance rating of fully successful . . . instead of a higher rating.

Award at 3.

Before the Arbitrator, the Union argued, among other things, that the Agency's performance appraisal system did not comply with applicable requirements and that the system had not been applied properly to the grievant.

With respect to the former argument, the Arbitrator noted that the parties' national collective bargaining agreement established certain requirements for the Agency's performance appraisal system. In particular, the Arbitrator noted Article 19, section 1, which, according to the Arbitrator, provides in relevant part:

The Employer agrees to maintain a performance appraisal system that is fair, objective and job related.

Id. at 12. The Arbitrator found that the Union submitted "virtually no relevant evidence" that the Agency's appraisal system did not comply with this provision. Id.

However, the Arbitrator found that the performance appraisal system was not properly applied to the grievant. In this regard, the Arbitrator noted the Union's argument that records of the grievant's performance were not maintained properly. The Arbitrator also noted the Agency's position that supervisors were not required to "keep records of an employee's performance if the work has been judged fully successful or better[.]" Id. at 6. In view of this position, the Arbitrator found unpersuasive testimony from one of the grievant's supervisors that, although the grievant's performance was satisfactory, he nevertheless maintained records on her performance because he found that her performance was "slipping." Id. at 13. The Arbitrator found, in this regard, that the Agency had not treated the grievant with "fairness and consistency." Id.

The Arbitrator also found that the Agency's "credibility" was weakened by testimony from the grievant's rating official that, in presenting his evaluation of the grievant's performance to the reviewing official, he did not rely on documentation of the grievant's work because "all the relevant information was . . . fresh in his mind[.]" Id. at 14. The Arbitrator concluded that "this method of reviewing an employee's performance rating . . . must be held arbitrary and lacking in the objectivity dictated by Article 19." Id.

Finally, the Arbitrator found "most damaging" the failure of a "key" Agency official to testify as a witness at the arbitration hearing. Id. The Arbitrator noted that Article 34, section 17 of the parties' agreement provides as follows:

B. If the witnesses are reasonably available, the Parties must produce the witnesses at the hearing . . . .

Id. (emphasis supplied by Arbitrator). The Arbitrator stated that this provision "clearly and withou[t] ambiguity directs that a party must produce the witnesses requested by the other if reasonably available." Id. at 16 (emphasis in original). According to the Arbitrator, the Union properly and timely requested that the disputed Agency official appear and testify at the hearing and the Agency failed to adequately explain the official's failure to do so.

The Arbitrator stated that, as he was unable to compel the attendance of the official, his "only recourse" was "to draw certain inferences" from the official's failure to testify. Id. at 15-16. In particular, the Arbitrator concluded that he would draw "inferences . . . against the Agency and in favor of [the grievant's] grievance[]" from the official's failure to testify. Id. at 16.

Although the Arbitrator concluded that the Agency's application of its performance appraisal system "more likely than not" violated the parties' agreement, he found the record insufficient to determine what the grievant's rating would have been if the Agency had appraised the grievant properly. Id. Accordingly, the Arbitrator remanded the matter to the Agency for reevaluation of the grievant's performance.

III. Exceptions

The Agency claims that the award is deficient because it is based on two nonfacts and because the award fails to draw its essence from the parties' agreement.

First, the Agency claims that the Arbitrator erroneously concluded that the Agency's performance appraisal system must comply with the requirement in Article 19, section 1 of the parties' national agreement that such system be fair, objective, and job related. According to the Agency, the "standard of objectivity," cited by the Arbitrator as encompassed by Article 19, section 1, "is not in the current and only relevant version of the National Agreement[.]" Exceptions at 2.(1) The Agency argues that the Arbitrator "held the Agency to an invalid standard, a standard of objectivity, a nonfact[]" and that but for the Arbitrator's improper reliance on this provision, the Arbitrator would have dismissed the grievance. Id. at 6.

Second, the Agency argues that the Arbitrator "improperly determined that the National Agreement contained an absolute requirement for the Agency to produce a witness requested by the grievant" whether or not the witness was reasonably available. Id. According to the Agency, the Arbitrator improperly required "the production of [the official] regardless of the fact that he was not 'reasonably available,' a nonfact, and found the Agency in violation of this nonexistent provision of the National Agreement." Id. at 8.

Finally, the Agency claims that the award fails to draw its essence from the parties' agreement "because it improperly shifts the burden of proof and establishes new procedural requirements for the Agency based upon a misinterpretation of the agreement." Id. at 9. The Agency claims that, although the Arbitrator concluded that "the grievant's unsupported allegations did not constitute proof and thereby the grievant failed to discharge her burden of proof[,]" the Arbitrator nevertheless required the Agency to "prove that all of its actions were in conformance with all provisions of the National Agreement . . . ." Id. at 10.

IV. Opposition

The Union argues that the Agency has not demonstrated that the award is deficient. With respect to Article 19, section 1, the Union acknowledges that the version of that provision cited by the Arbitrator is not contained in the parties' current agreement. However, the Union points out that the same version of the provision cited by the Arbitrator also was cited by the Agency during the processing of the instant grievance. Further, the Union disputes the Agency's claim that the official requested by the Union to appear as a witness at the arbitration hearing was not reasonably available. According to the Union, the Agency unreasonably requests the Authority to find that "two nonfacts outweigh the 30 or so facts used by the Arbitrator in reaching a decision[.]" Opposition at 1. The Union also claims that the award draws its essence from the parties' agreement.

V. Analysis and Conclusions

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the Arbitrator. For example, U.S. Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 44 FLRA 1080, 1083 (1992).

The Agency has not demonstrated that the Arbitrator's reference to Article 19, section 1 of the parties' agreement as including a requirement that the Agency's performance appraisal system be objective is a central fact underlying the award. In this regard, it is not disputed that the version of Article 19, section 1 cited by the Arbitrator is not contained in the current agreement. However, a review of the award does not disclose that the Arbitrator's reference to and conclusion regarding that provision were central to the award.

In addition to the Arbitrator's reference to and conclusion regarding Article 19, section 1, the Arbitrator expressly based his finding that the Agency did not fairly appraise the grievant's performance on: (1) testimony of one of her supervisors and the Arbitrator's conclusions based thereon that an "element of fairness and consistency" was absent from the evaluation; (2) inconsistencies between the testimony of a supervisor regarding his maintenance of records concerning the grievant's performance and the Agency's position regarding the requirements for such maintenance; and (3) inferences drawn from the Agency's failure to produce as a witness the requested Agency official. Moreover, although the Arbitrator referred to an incorrect version of Article 19 in discussing the rating official's method of appraising the grievant's performance, the Arbitrator's finding that "there is no provision in . . . the national agreement . . . setting forth this method" is not in dispute. Award at 14. Finally, although the Arbitrator referenced "the objectivity dictated by Article 19[,]" we note that Article 19, section 1, as it currently exists, expressly incorporates statutory provisions which, in turn, require agencies to establish appraisal systems and standards that, to the maximum extent feasible, "permit accurate evaluation of job performance of the basis of objective criteria . . . ." 5 U.S.C. § 4302(b)(1). As such, although Article 19 does not expressly require objectivity in the performance appraisal process, objectivity in certain aspects of the process is required by law.

Based on the foregoing, we find no basis on which to conclude that the Arbitrator's erroneous reference to Article 19, section 1 as incorporating a requirement that the Agency's appraisal system be fair constitutes a central fact underlying the award. Accordingly, we conclude that the Agency has not demonstrated that, in this respect, the award is based on a nonfact and we will deny this exception.

We also will deny the Agency's exception that the award is based on a nonfact insofar as the Arbitrator concluded that the Agency improperly failed to make available as a witness the requested Agency official. In contrast to its previous argument, the Agency does not dispute that the Arbitrator correctly cited Article 34, section 17 of the parties' current agreement. Instead, the Agency argues only that the Arbitrator improperly interpreted that provision as imposing "an absolute requirement . . . ." Exceptions at 6. The Agency's assertion that the Arbitrator incorrectly interpreted Article 34, section 17 does not demonstrate that the award is based on a nonfact.

Similarly, construing the Agency's argument as an assertion that the Arbitrator's interpretation of Article 34, section 17, fails to draw its essence from the agreement, we find no basis on which to conclude that the award is deficient on this ground. To demonstrate that an award is deficient as failing to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992) (Tinker).

The Agency has not demonstrated that the Arbitrator's interpretation of Article 34, section 17 is irrational, implausible, or in manifest disregard of the agreement. In this regard, we reject the Agency's assertion that the Arbitrator imposed an "absolute requirement" on the Agency to produce requested witnesses. Exceptions at 6. The Arbitrator plainly stated that the disputed provision directs a party to produce requested witnesses "if reasonably available." Award at 16. We conclude that the Agency's exception to the award as it relates to Article 34, section 17 constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement and with the Arbitrator's finding that the Agency did not justify its failure to produce the requested witness at the arbitration hearing. As such, the exception provides no basis for finding the award deficient. See Tinker, 45 FLRA at 286.

Finally, the Agency also has not demonstrated that the award fails to draw its essence from the parties' agreement because the Arbitrator "shifted grievant's burden [of proof] to the Agency." Exceptions at 10. Although, as the Agency points out, the Arbitrator found that the Union "failed to discharge its burden of proof[,]" it is clear that this finding related only to the Union's argument that the Agency's performance appraisal system failed to meet applicable requirements. Award at 12. The Arbitrator expressly concluded that the issue regarding the overall appraisal system was different from the issue regarding the application of the system to the grievant. See id. ("While there is no proof that the Agency is without a proper . . . appraisal system . . . the preponderance of the evidence persuades that in its application to [the grievant] . . . management w