48:0943(102)AR - - HHS, SSA, Boston Region and AFGE, Local 1164 - - 1993 FLRAdec AR - - v48 p943



[ v48 p943 ]
48:0943(102)AR
The decision of the Authority follows:


48 FLRA No. 102

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BOSTON REGION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1164

(Union)

0-AR-2474

_____

DECISION

November 24, 1993

_____

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 Joseph Glasser 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 challenging a performance appraisal. For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant received a performance appraisal rating of "Fully Successful." The Union filed a grievance asserting that the grievant's ratings on various generic job tasks should be raised. When the grievance was not resolved, it was submitted to arbitration under the expedited arbitration procedures of the parties' collective bargaining agreement.

The parties stipulated the following issue for arbitration:

Was the grievant rated properly? If not, what should be the remedy?

Award at 1.

The Arbitrator concluded, based on the evidence presented, that the grievant was not improperly rated by her supervisor. More specifically, the Arbitrator found there was no basis on which to conclude that "the supervisor . . . clearly failed to provide a performance appraisal that reflects the grievant's documented progress review." Id. at 3. In reaching that result, the Arbitrator found that the grievant's dissatisfaction with her performance appraisal was the result of her high expectations rather than "written documentation of verbal [sic] statements [made by] her supervisor." Id. at 1. The Arbitrator further found that the testimony of both the grievant and her supervisor indicated that the grievant did not question any aspect of her progress review and did not inquire into what she could have done to obtain higher ratings.

With regard to the conduct of the grievant's supervisor, the Arbitrator found no evidence to establish that his appraisal of the grievant was arbitrary or discriminatory or that he gave ratings that were contrary to those the grievant was informed she would receive. The Arbitrator also found no evidence that clearly indicated that the supervisor failed to document the grievant's performance. In this connection, the Arbitrator found that although the manner in which the supervisor conducted the appraisal may not have satisfied the Union, there was no evidence that it was "substandard." Id. at 2. Accordingly, the Arbitrator denied the grievance.

III. First Exception

A. Position of the Parties

1. Union

The Union contends that the Arbitrator erred by refusing to admit into evidence a progress review and performance appraisal of "an identically situated employee." Exceptions at 3. According to the Union, the parties' collective bargaining agreement provides that expedited arbitration proceedings are not subject to formal rules of evidence. The Union asserts that by rejecting the offered evidence, the Arbitrator imposed formal rules of evidence without notice to the parties. As a result, the Union maintains that the Arbitrator denied the grievant due process and a fair hearing.

The Union further notes that while the Arbitrator found no evidence to establish that the conduct of the grievant's supervisor was either arbitrary or discriminatory, admission of the performance appraisal and progress review would have "stood to serve as proof of that precise point." Id. The Union acknowledges, however, that this evidence may not have affected the Arbitrator's decision.

2. Agency

The Agency asserts that formal rules of evidence were not imposed on the parties. Rather, the Agency maintains that the Union was given a full opportunity to present all pertinent evidence. According to the Agency, the evidence the Union attempted to introduce was simply not relevant to the grievant's case and the Union is merely disagreeing with the Arbitrator's decision to reject the evidence.

The Agency further asserts that the parties' agreement requires that an employee's performance be rated against the performance standards. Consequently, the Agency argues that had the Arbitrator used another employee's performance information as a basis on which to determine the grievant's rating, the Arbitrator would have violated the agreement.

B. Analysis and Conclusions

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. The Authority has consistently held that arbitrators have considerable latitude in the conduct of the 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 American Federation of Government Employees, Local 1988 and U.S. Department of Veterans Affairs, Brooklyn Medical Center, 46 FLRA 1450, 1454 (1993) (Brooklyn Medical Center). In order to demonstrate that an arbitrator failed to conduct a fair hearing, it must be shown that the arbitrator refused to hear pertinent or material evidence or otherwise prejudiced a party in some way. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, AFL-CIO, Local 3610, 41 FLRA 504, 510 (1991).

We conclude that the Union has failed to establish that it was denied a fair hearing as a result of the Arbitrator's refusal to admit into evidence the performance appraisal and progress review of another employee. Nothing in the Union's exceptions persuades us that this evidence would have been pertinent or material to the outcome of this case. In fact, in its exceptions the Union concedes that it "cannot state with certainty that the documents at issue . . . would have changed [the Arbitrator's] decision." Exceptions at 3. In these circumstances, we conclude that the Arbitrator's exclusion of the evidence did not prejudice the grievant. Rather, we find that the Union's exception constitutes 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. See Brooklyn Medical Center, 46 FLRA at 1454-55.

We further find no merit to the Union's contentions that the Arbitrator denied the grievant both a fair hearing and due process as a result of the claimed imposition of formal rules of evidence. Indeed, there is no showing that the Arbitrator adhered to formal rules of evidence when he declined to admit certain evidence into the record. Rather, the Union is simply disagreeing with the manner in which the Arbitrator conducted the hearing. This exception provides no basis for finding the Arbitrator's award deficient. See, for example, American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1374-75 (1993) (Authority rejected exception that grievant was denied due process as a result of agency's failure to disclose certain evidence); Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA 830, 833-34 (1990) (exception contending that the arbitrator failed to conduct a fair hearing by improperly imposing formal rules of evidence provided no basis for finding the award deficient).

IV. Second Exception

A. Position of the Parties

1. Union

The Union contends that the award is contrary to law and the parties' agreement because the Arbitrator "improperly charged [the grievant] with the burden of defining [the] level of performance needed to attain the ratings she sought." Exceptions at 4. In support of this contention, the Union asserts that 5 U.S.C. § 4302(b)(1)(1) and Article 21, Section 3A of the parties' agreement require that performance standards must permit the accurate evaluation of job performance on the basis of objective criteria.(2) The Union states that performance standards must be communicated to employees and that absent an agency's specific, affirmative explanation concerning the meaning and content of performance standards, employees cannot be penalized for relying on the plain language of such standards in forming their expectations.

In this case, the Union claims that the grievant's supervisor knew more about the performance standards than he conveyed to the grievant at the beginning of the appraisal period and that he was obligated to provide that information. Instead, the Union claims that the supervisor explained only that the performance standards were "more of the same old B.S." Id. In addition, the Union characterizes the Arbitrator's decision as "thinly reasoned" and asserts that it "focuses on the grievant's failure to seek further definition of the performance standards[.]" Id. at 4.

2. Agency

The Agency contends that the grievant was aware of the standards on which she would be evaluated and had ample opportunity to clarify her expectations. According to the Agency, the grievant's supervisor testified that he discussed the new performance standards with the grievant at the beginning of the appraisal cycle and that the grievant did not ask questions or seek clarification at that time. The Agency further maintains that the grievant failed to ask any questions when she subsequently received her progress review. The Agency argues that the grievant's silence in this regard indicated to her supervisor a complete understanding of the standards.

The Agency further asserts that the Union is attempting to challenge the legality of the performance standards for the first time in its exceptions. The Agency argues that this issue was not raised in the grievance or presented to the Arbitrator and should not be considered.

Finally, the Agency asserts that the Arbitrator's decision is not premised on the fact that the grievant failed to ask her supervisor how to obtain higher ratings. According to the Agency, the decision is based on the Arbitrator's findings that there was insufficient evidence to establish that the grievant had performed at the levels claimed by the Union and that the ratings given were not contrary to those the grievant was informed she would receive.

B. Analysis and Conclusions

We conclude that the Union has failed to establish that the Arbitrator's decision is contrary to law or the parties' agreement.

First, we find no basis on which to conclude that the award violates 5 U.S.C. § 4302(b)(1) because the Arbitrator improperly required the grievant to define the level of performance needed to attain the ratings she sought. Generally, 5 U.S.C. § 4302 requires agencies to establish performance appraisal systems that, to the maximum extent feasible, permit the accurate evaluation of performance on the basis of objective, job-related criteria. See, for example, American Federation of Government Employees, Council 236 and General Services Administration, Region 9, 43 FLRA 982, 986 (1992) (GSA). To be objective, a performance standard should be "'sufficiently precise and specific as to invoke a general consensus as to its meaning and content.'" National Federation of Federal Employees, Local 1263 and U.S. Department of Defense, Defense Language Institute, Presidio of Monterey, 34 FLRA 697, 700 (1990) (Presidio), quoting Wilson v. Health and Human Services, 770 F.2d 1048, 1052 (Fed. Cir. (1985)). In addition, appraisal systems must provide for communicating performance standards to employees. GSA, 43 FLRA at 986. However, performance standards may permit subjective judgments of an employee's supervisor. Presidio, 34 FLRA at 700.

In our view, the Arbitrator did not unlawfully place on the grievant the burden of ascertaining the level of performance needed to achieve a desired rating. In this connection, the Arbitrator found that the grievant was provided with information concerning her performance and that the grievant did not question that information. We find no evidence in the record to indicate that the grievant's supervisor failed to inform the grievant of her performance standards or failed to discuss how the grievant could attain a particular rating. Additionally, there is nothing in the record to substantiate the Union's claim that the grievant's supervisor actually knew more about the standards than he communicated to the grievant. In our view, the Union is merely disagreeing with the Arbitrator's findings and conclusions. Such an exception fails to establish that the Arbitrator's award is deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 411 (1991) (denying exceptions that the arbitrator failed to properly evaluate the grievant's performance under 5 U.S.C. § 4302(b)(1), (2) and (3)).

We also conclude that the Union's contention that the award violates the collective bargaining agreement provides no basis for finding the award deficient. We construe this argument as a contention that the award fails to draw its essence from the parties' collective bargaining 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; (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; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 41 FLRA 1435, 1439 (1991).

The Union fails to establish that the award is deficient under any of these tests. More specifically, the Union has not shown that the Arbitrator's findings with respect to the manner in which the performance standards were communicated to the grievant were irrational, implausible, unfounded or in manifest disregard of the agreement. Consequently, the exception provides no basis for finding the award deficient. See U.S. Department of Veterans Affairs, Medical Center, Chillicothe, Ohio and American Federation of Government Employees, Local 1631, 44 FLRA 628, 630 (1992).

Additionally, we find no merit to the Union's contention that the Arbitrator's award was "thinly reasoned" and did not permit the Union to determine the exact weight the Arbitrator gave to the grievant's failure to inquire about the means necessary to achieve higher ratings. Exceptions at 4. We note that the grievance was submitted to arbitration as part of a contractual expedited arbitration procedure. Moreover, the Authority has repeatedly held, with certain exceptions not relevant here, that arbitrators are not required to set forth specific findings, or to specify and discuss all allegations in a grievance. See, for example, American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1113 (1990), and cases cited therein. We find that the Arbitrator here was not required to set forth more specific findings than were contained in the award.

Finally, to the extent the Union is attempting to challenge the legality of the grievant's performance standards for the first time in its exceptions, we agree with the Agency that such matter is not properly before us. The Authority previously has stated that arbitration awards are not subject to review on the basis of either evidence offered by a party or any issue presented to the Authority that was not presented to the arbitrator. See, for example, U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and Washington Plate Printers Union, Local No. 2, International Plate Printers, Die Stampers and Engravers, 41 FLRA 860, 865 (1991). See also section 2429.5 of the Authority's Rules and Regulations.

V. Third Exception

A. Position of the Parties

1. Union

The Union contends that the Arbitrator failed to consider the "objectivity requirement" of performance standards and accordingly premised his decision on "improper grounds." Exceptions at 5. Essentially, the Union asserts that the Arbitrator erred by "relying on the supervisor's subjective observations" instead of applying the objective language of the performance standards. Id.

The Union maintains that in cases involving the application of performance standards, the arbitrator must initially determine whether management applied the correct standards. The Union adds that if the standards were applied in violation of law, the arbitrator must then determine, based on the record, what the appraisal would have been if management had applied the correct standards or if the violation had not occurred. In support of this contention, the Union cites Social Security Administration Headquarters Office and American Federation of Government Employees, Local 1923, AFL-CIO, 33 FLRA 143 (1988). The Union states that in the present case, the Arbitrator was required to weigh the grievant's performance standards against the law, the agreement and the evidence to determine whether a violation occurred. Absent such an evaluation by the Arbitrator, the Union requests that the Authority vacate the award and remand the case to the Arbitrator for a rehearing.

2. Agency

The Agency contends that the Union is attempting to argue the statutory requirement of objectivity in performance standards, an issue that was not before the Arbitrator in the instant case. The Agency also asserts that the Arbitrator did not substitute the supervisor's observations for the grievant's written standards in arriving at the award. Rather, the Agency argues, the Arbitrator considered the evidence presented and compared the grievant's performance to the performance standards in arriving at his award.

B. Analysis and Conclusions

We construe the Union's exception that the Arbitrator erred by relying on the supervisor's subjective observations rather than on the objective language of the performance standards as a contention that the Arbitrator improperly evaluated the evidence. We find no basis on which to sustain this claim. Thus, we find nothing in the award to indicate that the grievant's performance ratings were improperly premised on subjective considerations or that the Arbitrator ignored the requirement that performance standards be objective. In our view, the Union's contention constitutes nothing more than disagreement with the Arbitrator's findings of fact and his evaluation of the evidence. As such, this exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 966 (1993).

We agree with the Union that where an arbitrator finds that an agency has not applied a grievant's established standards or has applied them in violation of law, regulation or the parties' bargaining agreement, the arbitrator can cancel the grievant's performance appraisal and evaluate the grievant or direct the agency to reevaluate the grievants's performance. See generally, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990). In this case, however, the Arbitrator did not find that the Agency either failed to apply the established performance standards or applied them in violation of law, regulation, or the parties' agreement. Rather, the Arbitrator specifically found, based on his evaluation of the evidence presented, that "the grievant was not rated improperly in her performance appraisal by [her] supervisor." Award at 3. Consequently, there is no basis on which to remand this case to the Arbitrator.

Finally, to the extent the Union is attempting to argue the statutory requirement of objectivity in performance standards, a matter not raised before the Arbitrator, we find that such argument is not before us. As we stated previously, issues that are not raised before an arbitrator are not properly before the Authority in exceptions to that arbitrator's award.

VI. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. 5 U.S.C. § 4302(b)(1) provides, in pertinent part, that a performance appraisal system shall provide for:

establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question for each employee or position under the system[.]

2. Article 21, Section 3A provides:

In general: performance standards and critical or non-critical elements must be consistent with the duties and responsibilities contained in the employee's position description. The performance standards, the critical and non-critical elements and their application must be fa