48:1414(151)AR - - HHS, SSA, Boston Region and AFGE, Local 3760 - - 1994 FLRAdec AR - - v48 p1414
[ v48 p1414 ]
The decision of the Authority follows:
48 FLRA No. 151
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 26, 1994
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. David Fine 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 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 exceptions.
II. Background and Arbitrator's Award
The grievant received an overall performance rating of "excellent" on her evaluation covering the period of June 1, 1992, to September 30, 1992. The grievant received three ratings of "4" (excellent) and two of "5" (outstanding) in the various Generic Job Tasks (GJTs) covered in her evaluation. A level "5" is the highest achievable rating level. The grievant filed a grievance challenging her rating because she believed that her work performance and the extra work she had performed during the rating period merited an overall summary rating of "outstanding." The grievance was not resolved and was submitted to arbitration.
The issue, as stated by the Arbitrator, was:
Should the grievant . . . receive level 5, Outstanding Rating, for fiscal year 1992 in GJT No[s.] 68[,] 49 and 118 and receive an overall summary rating of outstanding.
Award at 1.
The Arbitrator found that the grievant had set her goals for 1992 to improve on her 1991 evaluation and to achieve an overall rating of outstanding. In order to achieve this goal, the grievant became involved in extra work projects. In response to the grievant's assertion that her supervisor had ignored her requests that he inform her how she could achieve an outstanding rating, the Arbitrator determined that, based on the summary of a performance discussion between the supervisor and the grievant on August 6, 1992, the supervisor had discussed each of the grievant's GJTs and had completely reviewed the grievant's past accomplishments. The Arbitrator noted that the discussion did not appear to take place in a hostile environment. The Arbitrator also found that the supervisor had recommended the grievant for a cash award.
The Arbitrator stated that, in spite of the fact that evaluations are difficult and may differ from one supervisor to another, the person evaluated must accept the evaluation of the immediate supervisor. The Arbitrator concluded that "it was obvious that [the supervisor] used what he thought was his best judgment." Award at 4.
The Arbitrator found, after reviewing all the testimony and exhibits presented, that the Agency had not violated the provisions of its Performance Management System in evaluating the grievant. Accordingly, the Arbitrator concluded that the grievant "should not receive the level 5, Outstanding Rating for fiscal 1992 in [GJTs] 68, 49 and 118 based on her supervisor's evaluation" and he denied the grievance. Id. at 5.
III. First Exception
A. Union's Contention
The Union contends that the award is contrary to 5 U.S.C. § 4302, 5 C.F.R. § 430.203, and the parties' national agreement. In this regard the Union maintains that the Arbitrator failed to address the issue of the supervisor's and Agency's responsibility to adequately communicate performance standards to the grievant. The Union claims that the grievant's supervisor did not provide the required communication of elements and standards to the grievant. The Union asserts, in this regard, that an agency has a statutory responsibility to establish performance standards in accordance with 5 U.S.C. § 4302(b)(1).(1)
The Union admits that the Agency has established performance standards that provide five levels of performance and has defined the middle standard, "fully successful," and the standards just above and below that middle standard. However, the Union contends that the Arbitrator failed to consider the requirements of 5 C.F.R. § 430.203 involving appraisal systems.(2) The Union argues that the Agency is required not only to establish performance standards, but also to communicate those elements and standards to employees. The Union maintains that, despite requests by the grievant, the grievant's supervisor failed to provide the grievant the necessary information and guidance to establish what the performance standards were for achieving a level 5 in the GJTs of her position. Thus, the Union claims that the grievant did not receive the communications necessary to determine what performance was required to achieve an outstanding rating. In this regard, the Union contends that an objective reading of the supervisor's performance discussion of August 6, 1992, which was the only documentation the grievant received during the appraisal period that discussed standards, shows that it does not conform to the requirements of the law. Accordingly, the Union asserts that because the Agency did not communicate to the grievant the elements and standards, as required by 5 U.S.C. § 4302(b)(1) and 5 C.F.R. § 430.203, the Agency violated the parties' national agreement and the law in rendering the grievant's appraisal.
B. Analysis and Conclusions
The Union fails to establish that the award is contrary to 5 U.S.C. § 4302, 5 C.F.R. § 430.203, or the parties' national agreement.
First, although the Union asserts that the award is contrary to the parties' national agreement, it neither cited an article of the national agreement with which the award conflicts nor provided us with a copy of the agreement. A party has the burden of creating a record upon which the Authority can make its decision, including setting forth in full "[a]rguments in support of the stated grounds [for review], together with specific reference to the pertinent documents and citations of authorities; and . . . legible copies of other pertinent documents." 5 C.F.R. § 2425.2. Accordingly, we reject the Union's assertion.
Next, under 5 U.S.C. § 4302(b)(1), agencies are required to establish performance appraisal systems that, to the maximum extent feasible, permit accurate evaluation of performance on the basis of objective, job-related criteria. Appraisal systems must provide for establishing performance standards, communicating to employees the established standards, and evaluating employees on those standards. 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).
The Merit Systems Protection Board (MSPB) has held that the requirements of 5 U.S.C. § 4302(b)(1) are satisfied by communicating to employees the standards they must meet in order to be evaluated at a level sufficient for job retention. See U.S. Department of Veterans Affairs Medical Center, New Orleans, Louisiana and National Federation of Federal Employees, Local 1904, 36 FLRA 718, 723 (1990). See also Melnick v. Department of Housing and Urban Development, 42 MSPR 93, 98 (1989), aff'd 899 F.2d 1228 (Fed. Cir. 1990) (affirmance without opinion under Federal Rule 36); Seplavy v. Veterans Administration, 41 MSPR 251, 253-54 (1989). Moreover, consistent with the requirements of section 4302, a rating official may make a judgment about an employee's performance one level above the level at which a standard is written. 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, 1438-39 (1991). As noted above, the Union acknowledged that the appraisal system under which the grievant was rated provided five levels of performance, of which the standards for the three middle levels of achievement were defined. The Union has not alleged that those defined standards were not communicated to the grievant. Accordingly, we find that the Union has not demonstrated that the Arbitrator's award conflicts with 5 U.S.C. § 4302. Similarly, the Union has not demonstrated that the award conflicts with 5 C.F.R. § 430.203, which implements 5 U.S.C. § 4302.
IV. Second Exception
A. Union's Contention
The Union contends that the Arbitrator did not properly assess the facts and gave undue weight to the supervisor's decision and that, consequently, the Arbitrator denied the grievant a fair hearing. In this regard, the Union argues that the Arbitrator did not give proper consideration to the fact that the grievant made repeated inquiries to her supervisor regarding the requirements for achieving an outstanding rating and that the supervisor failed to communicate that information to her. The Union states that the Arbitrator erred in determining that the number of exhibits "reflect[ed] 'the thoroughness in preparation of material[s] to support the evaluation.'" Exceptions at 3 (quoting Award at 3).
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. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 108-09 (1992). 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. Id. Further, Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing that provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. Id. at 109.
We conclude that the Union has not established that the Arbitrator acted improperly so as to deny the Union a fundamentally fair hearing. The Arbitrator based his award on "all the testimony presented at the hearing together with the numerous exhibits[.]" Award at 4. In particular, the Arbitrator examined the exhibit containing a summary of the discussion between the supervisor and the grievant on August 6, 1992, and rejected the grievant's assertion that the supervisor had ignored her requests that