48:0562(55)AR - - HHS, SSA, Office of Hearigs and Appeals, Falls Church, Virginia and AFGE, Local 3615 - - 1993 FLRAdec AR - - v48 p562
[ v48 p562 ]
The decision of the Authority follows:
48 FLRA No. 55
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
FALLS CHURCH, VIRGINIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
September 29, 1993
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 Eugene T. Herbert 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.
The Arbitrator denied a grievance challenging the grievant's annual performance appraisal. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exception.
II. Background and Arbitrator's Award
The grievant was appraised as "Excellent" for the 1992 annual appraisal period. The grievant filed a grievance claiming that she should have been appraised as "Outstanding." The grievance was not resolved and was submitted to arbitration under the parties' expedited procedure.
Although the Arbitrator noted that there was evidence presented "which would support a rating of 'Outstanding'" for the grievant, he stated that the grievant's supervisor had determined otherwise in light of all the circumstances. Award at 3. The Arbitrator ruled that absent a clear showing that the supervisor's determination was arbitrary, capricious, or discriminatory, he would not substitute his judgment for that of the grievant's supervisor, who had daily observed the grievant's performance. Because the Union failed to make such a showing, the Arbitrator denied the grievance.
The Union contends that the Arbitrator misinterpreted and misapplied the case law of the Authority in denying the grievance and failed to assess the grievant's performance as required by law and the parties' collective bargaining agreement. The Union maintains that as recognized by the Arbitrator, the evidence and testimony presented at the arbitration hearing demonstrated that the grievant's performance in each disputed job element was at the outstanding level. Thus, the Union argues that the Arbitrator should have directed that the grievant's annual performance rating be raised to outstanding under the Authority's decisions in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I) and U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (SSA II). The Union also argues that the Arbitrator impermissibly added an additional prong to SSA I and SSA II when he required a clear showing of arbitrary, capricious, or discriminatory behavior on the part of the grievant's supervisor. The Union further asserts that this requirement disregarded Article 21 of the collective bargaining agreement and 5 C.F.R. § 430.205.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
In our view, the Arbitrator found that despite some evidence of outstanding performance, the weight of the evidence was not sufficient to persuade him to substitute his judgment for that of the grievant's supervisor, who in light of all the circumstances and after observing the grievant's performance on a daily basis had determined that her performance was not at the outstanding level. The Arbitrator did not find that the evidence and testimony demonstrated that the grievant's performance was at the outstanding level, as claimed by the Union. Thus, we find that the Union's exception constitutes nothing more than disagreement with the Arbitrator's conclusion that the grievant was properly appraised as excellent rather than as outstanding for the 1992 appraisal period. As we have repeatedly held in cases in which the arbitrator determines that the grievant was properly appraised, such disagreement provides no basis on which to find an arbitration award deficient under the Statute. For example, National Federation of Federal Employees, Local 259 and U.S. Department of the Army Corps of Engineers, Memphis District, Memphis, Tennessee, 45 FLRA 773, 776 (1992) (NFFE Local 259); U.S. Department of Veterans Affairs Medical Center, Chillicothe, Ohio and American Federation of Government Employees, Local 1631, 44 FLRA 628, 630 (1992) (VA Medical Center).
In addition, we reject the Union's claim that the award is inconsistent with SSA I or SSA II. In this case, the Arbitrator did not find that the Agency had failed to apply the established elements and standards to the grievant or that the Agency had applied them in violation of law, regulation, or the parties' collective bargaining agreement. Consequently, there is no basis on which to conclude that the Arbitrator erred in failing to modify the grievant's appraisal. See U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 35 FLRA 1218, 1223 (1990). We note that this is not a case where the Arbitrator refused to raise the grievant's rating because he erroneously believed that he was not authorized to substitute his judgment for that of the grievant's supervisor. See American Federation of Government Employees, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 45 FLRA 631, 637-38 (1992) (award was deficient when the arbitrator failed to award the remedy required by SSA I and SSA II).
We also disagree with the Union's claim that the Arbitrator added an additional prong to SSA I and SSA II when he required a clear showing of arbitrary, capricious, or discriminatory action on the part of the grievant's supervisor. In our view, this constituted the Arbitrator's expression of the standard of proof that he would require in order to persuade him that the grievant's performance was, in fact, outstanding, rather than excellent as appraised by her supervisor. SSA I and SSA II do not specify what standard of proof an arbitrator must apply in determining whether the established elements and standards were properly applied. With no other standard apparently specified, it was for the Arbitrator to determine the standard to be applied, and no basis is provided for finding the award deficient. American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 45 FLRA 822, 825 (1992) (unless a specific standard of proof is required, arbitrators may apply any burden they choose); NFFE Local 259, 45 FLRA at 776 (disagreement with the arbitrator's determination that the grievant's performance was not "out of the ordinary" provided no basis for finding