49:0499(41)AR - - National Air Traffic Controllers Association, Local NKT and Navy, Marine Corps Air Station, Cherry Point, NC - - 1994 FLRAdec AR - - v49 p499
[ v49 p499 ]
The decision of the Authority follows:
49 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
U.S. DEPARTMENT OF THE NAVY
MARINE CORPS AIR STATION
CHERRY POINT, NORTH CAROLINA
March 11, 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 Ferrin Y. Mathews 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 claiming that the Agency violated its regulations when it failed to pay three employees performance awards of at least 2 percent of their base pay for receiving outstanding performance ratings.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On August 25, 1992, the Agency paid each of the three grievants a performance award in the amount of $225 for having received outstanding performance appraisal ratings. The Union filed a grievance contending that the amount of the performance awards violated regulations covering the Agency's Performance Appraisal Review System (PARS). Specifically, the Union claimed that the Agency's action was contrary to the Agency's Civilian Personnel Manual (CPM), Air Station Order (ASO) 12000.6D, Section 19005.4.e.(1) The Agency denied the grievance on the grounds that the provision relied on by the Union in support of its grievance had been superseded by CMC (Commandant of the Marine Corps) Washington DC 261755Z SEP 90 (the Administrative Message).(2) The Administrative Message informed local management of the following change to PARS: "'The payment of . . . performance awards is optional.'" Award at 25. The Administrative Message also changed the minimum percentage of salary for performance awards based on outstanding performance ratings under PARS from 2 percent to 0 percent.
The grievance was not resolved and was subsequently submitted to arbitration. The Arbitrator stated that the grievance raised two issues:
1. Whether the [g]rievance is arbitrable[.]
2. If the [g]rievance is arbitrable, were the [p]erformance [a]ward [a]mounts given to the [g]rievants contrary to law, rule, or regulation, or otherwise deficient; and if so, what shall be the appropriate remedy[.]
Id. at 4.
As an initial matter, the Arbitrator found that the grievance was arbitrable.
The Arbitrator stated that it was uncontroverted that Government-wide regulations require Federal agencies "to submit to [the Office of Personnel Management (OPM)] for review and approval any changes to their Performance Management Plans which modify any element of [an] agency's [performance] system that is included in a Performance Management Plan check list; and which require OPM to review any proposed plan revisions which have impact on how an [a]gency meets statutory and regulatory requirements." Award at 36 (referencing 5 C.F.R. § 430.502). Before the Arbitrator, the Union asserted that "the maker of [the Administrative Message] did not have authority to change a provision of PARS without the approval" of OPM. Id. at 28-29. The Union argued that if OPM had approved the change to PARS, OPM would have documented its approval. The Union claimed that the Agency provided no documentation showing that OPM approved the change to PARS that was made by the Administrative Message. Accordingly, the Union contended that the Administrative Message did not supersede the CPM and other Agency rules and regulations covering performance award payments under PARS. Additionally, the Union claimed that it was unaware of the Agency's assertion that "budgetary constraints" necessitated the change to PARS until the Agency's opening statement at the hearing. Id. at 29. The Union contended that, by failing to notify the Union and to bargain on impact and implementation before changing the percentage range of performance awards payments under PARS, the Agency violated its obligations under the Statute.
The Agency contended before the Arbitrator that the Administrative Message superseded Agency rules and regulations requiring a performance award payment of at least 2 percent of an employee's base salary for an outstanding performance rating. The Agency claimed that the Administrative Message "was a regulation and order from Headquarters Marine Corps" and that it had "implemented the [Administrative Message on orders] from a higher authority." Id. at 26, 30. The Agency also asserted that the change to PARS contained in the Administrative Message had been approved by OPM and that the Union's contentions regarding the Agency's obligations under the Statute were not raised in the grievance before the Arbitrator.
The Arbitrator found that the Union failed to raise in its grievance the issue of the Agency's statutory obligations to notify the Union of the Agency's change in the minimum percentage of salary for performance award payments under PARS and to bargain over the impact and implementation of the change. The Arbitrator determined that, under the parties' applicable interim agreement, a grievance must include both a complaint as to the Agency action being grieved and a claimed violation, misinterpretation, or misapplication of any law, rule, or regulation relating to the complaint. The Arbitrator found that the Union's grievance did not include a complaint as to the Agency's failure to meet its bargaining obligation under the Statute or a "claimed violation, misinterpretation, or misapplication of any law, rule or regulation relating thereto." Id. at 33. The Arbitrator concluded that the Union's contention "did not constitute a part of the [g]rievance" and required no further decision. Id.
In addressing the merits of the grievance, the Arbitrator found that under the various Agency rules and regulations cited by the Union, a performance award payment for an Agency employee receiving an outstanding performance appraisal rating was required to be at least 2 percent of the employee's base pay. The Arbitrator found that the grievants' disputed performance awards amounted to less than 2 percent of their respective base salaries and ruled that the Agency's action violated these rules and regulations. However, the Arbitrator concluded that the Administrative Message superseded the rules and regulations relied on by the Union. The Arbitrator concluded that the Administrative Message permitted the Agency to pay the grievants performance awards that were less than 2 percent of their respective base salaries.
The Arbitrator rejected the Union's reliance on National Air Traffic Controllers Association, MEBA/NMU v. Department of Transportation, 960 F.2d 156 (Fed. Cir. 1992) (NATCA) (mem.) as support for its contention that the Administrative Message was "not sufficient" to constitute a change to PARS. Id. at 36. The Arbitrator found that NATCA was distinguishable from the instant case because in NATCA "there was no evidence of OPM approval" of the change in the agency's performance system other than "the attorney argument in a post-hearing brief" and the court found that that "argument did not constitute . . . evidence." Id. at 37. In contrast, the Arbitrator found that "the recitation of OPM approval in the Administrative Message from the Commandant Marine Corps constituted evidence of the approval by OPM of the change in the percentages of base salary" required for performance awards under PARS. Id. at 38 (emphasis omitted; citing Chennault v. Department of the Navy, 796 F.2d 465, 467 (Fed. Cir. 1986) (Chennault).
The Arbitrator noted that in Chennault the court affirmed a Merit Systems Protection Board (MSPB) decision which rejected MSPB's previous holding that OPM approval of changes to its performance system had to be proved by affidavit, testimony, or a letter. The Arbitrator further found that: "[T]here was no reason to reject, as proof, a formal agency regulation stating explicitly and officially that OPM had approved that agency's performance appraisal system. That would appear to be a top-level showing of OPM approval, fully probative and acceptable." Award at 38 (quoting Chennault at 796 F.2d at 467; emphasis by Arbitrator deleted). The Arbitrator further noted that the court found that "any 'probative hearsay evidence' on the point of OPM approval was specifically indicated [by MSPB] to be acceptable." Id. (quoting Chennault, 796 F.2d at 468; emphasis by Arbitrator deleted).
Accordingly, the Arbitrator determined that the Agency had not acted improperly and he denied the grievance.
III. First Exception
A. Union's Position
The Union contends that the Arbitrator's award is based on a nonfact. The Union states that "the essence of the Arbitrator's decision . . . goes to whether or not OPM approval was obtained for the revision to the [Agency's] Performance Award Program" as set forth in the Administrative Message. Exceptions at 7. The Union asserts that the Arbitrator's finding that the Administrative Message constituted "evidence of OPM approval [of a change to the PARS performance award program] is a misinterpretation of the law and administrative hierarchy of the Department of [the] Navy." Id. at 8 (citing Award at 38).
The Union claims that "no evidence [was] submitted or existing that the revisions to the plan were submitted to or approved by OPM." Id. at 8. The Union argues that "[t]he Agency failed to provide, at the hearing, the author of the '[A]dministrative [M]essage' or anyone sufficiently familiar with the document to attest to the validity of the claim that the revision to the performance award plan had been approved by OPM as required by law." Id. at 12. The Union claims that "the only witness produced by the [A]gency . . . . failed to provide any evidence as to the probative value of the [Administrative M]essage." Id. The Union asserts that the Arbitrator's reliance on Chennault to support his conclusion that the Administrative Message constituted evidence of OPM approval of the changes to the PARS performance award program "is misplaced and a misinterpretation of the [c]ourt's decision." Id. at 11.
Moreover, the Union also claims that "[t]he Commandant Marine Corps, while having the authority over Marine Corps installations and military personnel, does not have the authority to revise Department of [the] Navy regulations." Id. at 8. The Union asserts that issuing a Commandant-level administrative message to change PARS is contrary to stated Agency policy and procedures. Moreover, the Union claims that, although it raised the issue of the Commandant's authority to make changes to PARS before the Arbitrator, the Arbitrator did not address this issue.
B. Analysis and Conclusions
To establish that an award is based on a nonfact, a party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, U.S. Department of the Army, U.S. Army Support Command, Fort Shafter, Hawaii and International Association of Machinists and Aerospace Workers, AFL-CIO, Hawaii Federal Lodge 1998, 48 FLRA 777, 779-80 (1993).
Even assuming that the Arbitrator's finding that OPM approved the changes to the PARS system noted in the Administrative Message is a central fact underlying the award, the Union has not shown that his determination is clearly erroneous. The Arbitrator found that OPM approval was noted on the face of the Administrative Message. The Union has not demonstrated that the notation of OPM approval referenced by the Arbitrator does not apply to the contents of the Administrative Message. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence and the credibility and weight given witnesses' testimony and, as such, provides no basis for finding the award deficient. See id. at 780.
As to the Union's claim that the Arbitrator failed to address its contention that the Commandant of the Marine Corps did not have authority to change PARS, we note that an arbitrator's failure to set forth specific findings, or to specify and discuss all allegations in a grievance, does not provide a basis for finding an award deficient. See, for example, U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 41 FLRA 472, 476 (1991). We find that by concluding that the Administrative Message superseded the Agency rules and regulations relied on by the Union in support of its grievance, the Arbitrator implicitly found that PARS was properly revised. Consequently, we will deny the Union's first exception.
IV. Second Exception
A. Union's Position
The Union asserts that the Arbitrator erred by concluding that the issue of the Agency's failure to comply with its statutory obligation to bargain "'did not constitute a part of the [g]rievance and requires no decision because of the [Union's] failure to comply with the provisions of the grievance procedure.'" Exceptions at 19 (quoting Award at 33; emphasis supplied by Arbitrator omitted). Specifically, the Union argues that the Arbitrator erroneously concluded that "the Union was required to raise the issue of [the Agency's] failure to give notice of [a] change to working conditions at the time the grievance was filed." Id. According to the Union, it was unaware of the change noted in the Administrative Message until "well after the grievance was filed" and, therefore, it was "beyond reason and possibility" to include this issue in the grievance. Id.
The Union contends that, by failing to consider this issue, the Arbitrator deprived the Union of "the rights and protection afforded the Union" under the Statute. Id. at 20. The Union claims that, at the hearing, the Arbitrator "shut down all effective testimony concerning the [Agency's obligation under the Statute] to notify the Union of changes or proposed changes to working conditions." Id. Moreover, the Union claims that the Arbitrator was "predispos[ed]" to "reject any argument that the Agency was required to notify the Union" and "took away from the Union the right to effectively raise [this statutory] violation at the hearing." Id.
B. Analysis and Conclusions
We construe the Union's assertion that the Arbitrator denied the Union an opportunity to raise the issue of the Agency's failure to comply with its statutory obligation to bargain as a contention that the Arbitrator failed to conduct a fair hearing. The Authority will find an arbitration award deficient if it is established that the 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 a hearing and the fact than 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, 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, 1373 (1993).
We find that the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing. The Arbitrator determined that the issue raised by the Union "did not constitute a part of the [g]rievance" and that it "require[d] no decision because of the failure [of the Union] to comply with [provisions of the parties' applicable interim agreement.]" Award at 33. The Union has not demonstrated that the Arbitrator improperly concluded that the interim agreement precluded consideration of that issue or discussion of the issue at the hearing. In our view, the Union's arguments constitute mere disagreement with the Arbitrator's interpretation of the interim agreement and with the manner in which the Arbitrator conducted the hearing. As such, the Union's exception provides no basis for finding the award deficient. For example, U.S. Department of the Army, Army Corps of Engineers, Mobile, Alabama and National Federation of Federal Employees, Local 561, 46 FLRA 968, 972 (1992).
Further, we note that the Union's exception can be construed as disagreement with the Arbitrator's procedural finding that the issue was not arbitrable because it was not raised at the time the grievance was filed as required by the grievance procedure. It is well established that exceptions which disagree with an arbitrator's determination as to the procedural arbitrability of a grievance gen