48:1131(124)AR - - AFGE, Local 1923 and HHS, SSA, Philadelphia, PA - - 1993 FLRAdec AR - - v48 p1131



[ v48 p1131 ]
48:1131(124)AR
The decision of the Authority follows:


48 FLRA No. 124

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

PHILADELPHIA, PENNSYLVANIA

(Agency)

0-AR-2452

_____

DECISION

December 21, 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 J. Fredrik Ekstrom 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 Agency's exceptions.

The Union filed a grievance seeking to increase the grievant's ratings in four of the Generic Job Tasks (GJTs) that were considered in determining the grievant's overall performance rating. The Arbitrator sustained the grievance only insofar as it concerned GJT No. 1 and denied the grievance as to the other GJTs. The Arbitrator cancelled the Agency's evaluation, reevaluated the grievant, raised the grievant's rating in GJT No. 1, and ordered the Agency to recalculate the grievant's summary rating and recognize the grievant in a manner consistent with other employees who received a similar summary rating.

We find that the Agency has not demonstrated that the Arbitrator's award is deficient under section 7122(a) of the Statute and we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant received an overall performance appraisal rating of "Fully Successful," level 3, for the 1991 rating period from May 15, 1991 through September 30, 1991. On October 28, 1991, the Union filed a grievance seeking to increase the grievant's ratings in four of the GJTs that were considered in determining the overall rating. Specifically, the Union requested that GJT Nos. 1, 7, 20, and 40 be raised to a rating of "Outstanding," level 5. The grievant had been rated "Fully Successful," level 3, in GJT Nos. 1 and 40; and "Excellent," level 4, in GJT Nos. 7 and 20.

The parties did not resolve the grievance and the matter was submitted to the Arbitrator. The issue, as stated by the Arbitrator, was:

Does the October 16, 1991 Performance Appraisal of [the grievant] violate law, government-wide regulation or the Master Agreement? If so[,] what shall the [r]emedy be?

Award at 2.

The Arbitrator first found that the Union had not demonstrated that the grievant received lower ratings than "Outstanding" in GJT Nos. 1, 7, 20, and 40, because of Union animus or discrimination. The Arbitrator also found that undisputed evidence in the record justified the Agency's evaluation of the grievant as to GJT No. 40.

As to GJT No. 1, the Arbitrator found that "[t]he grievant's evaluation stands or falls on the use of what is known as [adjudicative technique 3.2,]" which is a new processing system used by the Agency's claims representatives. Id. at 4. The Arbitrator stated that the record showed that a supervisor other than the grievant's supervisor met with employees at the beginning of the evaluation period to discuss their performance standards. However, the Arbitrator found that there was no evidence that this supervisor discussed the new system in the meeting. The Arbitrator also found that the grievant's supervisor did not meet with employees later to discuss performance requirements under the system. According to the Arbitrator, the Agency did not establish that, at the beginning of the evaluation period, the supervisor informed the grievant that he would be evaluated on his use of the system. Thus, the Arbitrator found that "there could be a difference . . . between what actually was expressed to the employees by the other supervisor and [the grievant's] supervisor's standards." Id.

The Arbitrator found that the grievant's supervisor "had never directly instructed the [employees] to utilize [the new] system whenever possible." Id. Accordingly, the Arbitrator determined that an item that was not identified as part of the grievant's performance standards "and not listed in any written document became the basis of the evaluation of the grievant['s] work for item GJT [No.] 1 as level 3." Id. at 5. The Arbitrator concluded that the supervisor did not apply the established elements and standards in accordance with law, regulation, or the Master Agreement between the parties when evaluating the grievant. The Arbitrator stated that "[e]xcluding this information leads to a reevaluation of this GJT." Id. The Arbitrator found that "[w]hen this issue, the use of [the new system], is excluded from the evaluation of the grievant, and the criteria established by the parties and noted in the [p]erformance [a]ppraisal by the [s]upervisor are applied, the grievant meets the criteria for level 4." Id.

The Arbitrator stated that in order to show that the grievant was entitled to a level 5 rating in each of the disputed GJTs, the Union needed to clearly demonstrate that the grievant's work performance exceeded the standards listed in level 4. The Arbitrator found that the Union had not met its burden of proof because the Union had not clearly demonstrated that the grievant completed "Outstanding" work in the four elements of his assigned duties. Therefore, the Arbitrator denied the Union's request to raise the grievant's ratings in the four elements of his assigned duties to "Outstanding."

As a remedy, the Arbitrator directed the Agency to change the grievant's rating in GJT No. 1 to level 4. The Arbitrator also directed the Agency to recalculate the grievant's summary rating level and to recognize the grievant in a manner consistent with others who have received a similar summary rating.

After the Arbitrator issued his award and pursuant to the request of the Union, the Arbitrator issued a clarification of the award to correct "the use of double negatives . . . ." Union Exhibit No. 4. As relevant here, the Arbitrator stated that "[o]n page 6 in the first sentence of the Award the word 'not' was . . . improperly used." Id. According to the Arbitrator, "[t]he word 'not' should be deleted and the sentence should read[:] 'This arbitrator finds that the Agency has applied the established elements and standards in violation of law, regulation, or provision of the Collective Bargaining Agreement in regard to GJT [No.] 1 of the Performance Appraisal of the grievant . . . ." Id. The Arbitrator's clarification was served on the Union and the Agency representatives.

III. Positions of the Parties

A. Agency's Exceptions

The Agency argues that the award fails to meet the requirements of 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), governing the remedial authority of arbitrators in performance appraisal cases. The Agency asserts that the Arbitrator found that "the Agency has not applied the established elements and standards in violation of law, regulation or provision of the Collective Bargaining Agreement, in regard to [GJT No. 1] of the performance appraisal of the grievant . . . ." Exceptions at 2 (emphasis in original). In light of this finding, the Agency claims that the Arbitrator's award does not meet the first prong of the two-prong test set forth in SSA II. The Agency argues that, in any event, there is not sufficient evidence in the record to reevaluate the grievant's performance. The Agency contends, therefore, that the award does not meet the second prong of the test in SSA II. The Agency maintains that, by raising the grievant's rating in GJT No. 1, the Arbitrator "violated the [S]tatute and exceeded his authority by substituting his judgment for that of management." Id. at 5. The Agency contends that the award interferes with management's right to direct employees under section 7106(a)(2)(A) of the Statute.

The Agency also contends that the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. The Agency asserts that the parties agreed to address the issue of performance awards "only within the [A]rbitrator's self-imposed limitations." Id. at 11 (emphasis omitted). According to the Agency, the parties agreed to resolve issues concerning payment of an award only if the Arbitrator found that the grievant's performance appraisal was "outrageous." Id. at 12. The Agency asserts that the Arbitrator "never indicated that the appraisal was 'outrageous' in his award[.]" Id. The Agency argues that the Arbitrator "exceeded the contractual authority allowed him by directing the Agency to 'recognize the grievant in a manner consistent with others who received a similar summary rating' (i.e.[,] performance award)." Id. at 11. The Agency contends that the Arbitrator's award, therefore, disregards the contract and the Arbitrator exceeded his authority by resolving an issue that was not mutually agreed upon by the parties.

Finally, the Agency contends that the award is deficient because it is based on a nonfact. The Agency states that the Arbitrator found that "'an item outside of the [performance standards] and not listed in any written document [(that is, the new system)] became the basis of the evaluation of the grievant[']s work for item GJT [No. 1] as level 3.'" Id. at 13 (emphasis in original). The Agency argues that the Arbitrator's statement is a nonfact because the new system was "listed in at least two written documents, one directly and one indirectly." Id. at 14. The Agency states that the system was directly listed in the grievant's performance review narrative summary dated July 31, 1993. The Agency asserts that "[t]he contents of the review summary, specifically those under GJT [No. 1], serve to prove that [the grievant] was expected to use [the new system] to process claims in most cases." Id. The Agency also states that the grievant's performance standards require knowledge of various adjudicative techniques. The Agency argues that, because the new system is an adjudicative technique, the system is listed, indirectly, in the performance standards. According to the Agency, this evidence, which the Arbitrator declared "non-existent, would have hindered his ability to justify the re-evaluation of the grievant at level 4 in GJT [No.] 1, when considered with the other evidence of record." Id. at 15.

B. Union's Opposition

The Union argues that the Agency's first exception is an attempt to relitigate the issues decided by the Arbitrator. The Union maintains that "[t]he Arbitrator clearly detailed that there was a violation of law, regulation, or a provision of the parties' collective bargaining agreement." Opposition at 5. The Union also maintains that the Arbitrator properly determined, based on the record, what the grievant's rating would have been had the Agency not violated law, regulation, and the collective bargaining agreement. The Union claims that the Arbitrator's award fully complies with SSA I and SSA II.

As to the second exception, the Union states that "[t]he Agency is making an assumption from the award when [the Agency] speak[s] of the performance award issue." Id. at 7-8 (citation omitted). According to the Union, "[n]owhere in this award does the Arbitrator direct management to issue a performance award to the grievant." Id. at 8. The Union states that the Arbitrator "only directed [the Agency] to raise the GJT in question, recalculate the grievant's Summary Rating Level and to recognize the grievant in a manner consistent with others who received a similar Summary Rating." Id. Noting that the parties' National Agreement provides that all employees shall be treated fairly and equitably in all regards to personnel matters and that performance standards will be applied in a fair and equitable manner, the Union asserts that the Arbitrator's remedy "is in clear compliance with the National Agreement and the [a]uthority granted him." Id.

Finally, the Union argues that the Agency's third exception lacks merit. The Union asserts that "[i]f the issue of [the new] processing [system] was not expressed to the employee during the GJT meetings[,] it can not be used against the employee at a later date, especially when there was no documentation [o]n file regarding this issue." Id. at 9. The Union maintains that the "supervisor stated that he never directly instructed the [employees] to utilize [the new] system, nor did he put it in a directive, or produce a written workflow of this policy." Id. at 10 (citation omitted).

IV. Analysis and Conclusions

For the following reasons, we find that the Agency has not demonstrated that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Agency's exceptions.

In SSA II, the Authority set forth the following two-prong test concerning the remedial authority of arbitrators in performance appraisal cases:

First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation[,] or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order management to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.

U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, AFL-CIO, 48 FLRA 406, 408 (1993), quoting SSA II, 34 FLRA at 328. See also SSA I, 30 FLRA at 1160-62.

We conclude that the Arbitrator's award satisfies both prongs of the SSA II test.

It is clear from the award and the clarification of the award that the Arbitrator found that the grievant's supervisor "did not apply the established elements and standards in accordance with law, regulation or the Master Agreement between the parties when evaluating [the grievant]" on GJT No. 1.(*) Award at 5. See also Opposition at 4 (quoting Union Exhibit No. 4). Therefore, the Arbitrator concluded that the Agency "applied the established elements and standards in violation of law, regulation or provision of the Collective Bargaining Agreement, in regard to GJT [No. 1] of the Performance Appraisal of the grievant . . . ." Id. at 6. In view of the Arbitrator's findings, as clarified, we conclude that the award satisfies the first prong of SSA II and that the Arbitrator properly cancelled the grievant's rating as to GJT No. 1. See U.S. Department of Health and Human Services, Social Security Administration, Boston Region, Office of Program Integrity and Reviews and American Federation of Government Employees, Local 3760, 46 FLRA 1147, 1150-51 (1993) (SSA, Boston Region).

The award also satisfies the second prong of the SSA II test. Once an arbitrator has cancelled an agency's rating, the arbitrator may order management to grant a particular rating "if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred[.]" SSA II, 34 FLRA at 328. See also SSA, Boston Region, 46 FLRA at 1151. Here, the Arbitrator found that when "the criteria established by the parties and noted in the [p]erformance [a]ppraisal by the [s]upervisor are applied, the grievant meets the criteria for level 4" in GJT No. 1. Award at 5. In other words, based on the record, the Arbitrator found that the grievant would have received a rating of level 4 in GJT No. 1 had the violations of law, regulation, and the contract not occurred. In view of these findings, we conclude that the Agency's claim that there was insufficient evidence in the record for the Arbitrator to determine what the grievant's rating should have been constitutes mere disagreement with the Arbitrator's evaluation of the evidence and does not demonstrate that the award is deficient.

Moreover, we conclude that the Agency has not demonstrated that the award fails to draw its essence from the parties' collective bargaining agreement or that the Arbitrator exceeded his authority. An award fails to draw its essence from an agreement when the party making this allegation establishes 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 purpose 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. See National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Liquidation, Orlando Consolidated Field Office, Orlando, Florida, 48 FLRA 462 (1993). An arbitrator exceeds his or her authority when, for example, the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. 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, Council 215, 48 FLRA 833, 838 (1993).

The Agency contends that the Arbitrator disregarded the parties' agreement and exceeded his contractual authority by directing the Agency to give the grievant a performance award. However, as is clear from his award, the Arbitrator did not direct the Agency to give the grievant a performance award. Rather, the Arbitrator directed the Agency to raise the grievant's rating as to GJT No. 1, recalculate the grievant's summary rating, and recognize the grievant to the same extent that the Agency recognized other employees who received a similar summary rating. In addition, we note that the issue before the Arbitrator was whether the grievant's performance appraisal violated law, government-wide regulation, or the Master Agreement, and, if so, what remedy was appropriate. The award, including the portion of the remedy requiring the Agency to recognize the grievant in a manner consistent with other employees who received a similar summary rating, is directly responsive to the issue before the Arbitrator. In our view, the Agency has not demonstrated that the Arbitrator exceeded his authority. See American Federation of Government Employees, AFL-CIO, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 48 FLRA 336, 338 (1993).

Finally, we conclude that the Agency has not demonstrated that the award is based on a nonfact. The Authority will find an arbitration award deficient under the Statute because it is based on a nonfact when the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. Overseas Education Association, West Point Elementary School Teachers and U.S. Department of Defense, United States Military Academy, West Point, New York, 48 FLRA 213, 218 (1993). An arbitration award will not be found deficient on this basis if the appealing party merely disputes an arbitrator's findings of fact. U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857, 48 FLRA 862, 867 (1993) (McClellan). In this case, the Arbitrator found that the Agency's employees were not informed that they would be evaluated on the use of the new processing system in the meeting held at the beginning of the evaluation period or in any written document concerning the employees' performance requirements. The Agency has not established that the Arbitrator's finding is clearly erroneous. In our view, the Agency's claim that the new system was "listed in at least two written documents, one directly and one indirectly[,]" constitutes mere disagreement with the Arbitrator's findings of fact. Exceptions at 14. Such disagreement does not establish that the award is based on a nonfact and does not otherwise provide a basis for finding the award deficient. See McClellan, 48 FLRA at 867.

In sum, we conclude that the Agency's exceptions do not demonstrate that the award is deficient. Accordingly, we will deny the exceptions.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have