American Federation of Government Employees, Local 2206 (Union) and Social Security Administration, Southeastern Program Service Center, Birmingham, Alabama (Agency)

[ v59 p307 ]

59 FLRA No. 47

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2206
(Union)

and

SOCIAL SECURITY ADMINISTRATION
SOUTHEASTERN PROGRAM SERVICE CENTER
BIRMINGHAM, ALABAMA
(Agency)

0-AR-3672

_____

DECISION

September 30, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Edwin R. Render filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the Agency acted improperly by failing to include critical elements in probationary employees' position descriptions (PDs), but declined to grant the Union's requested remedy of reinstatement. The Arbitrator also found that the Agency did not act improperly by using certain trainee guidelines and numerical indicators to rate the probationary employees' performance, and that the Agency did not fail to reasonably accommodate certain probationary employees with disabilities.

      For the following reasons, we deny the exceptions.

II.     Background and Arbitrator's Award

      When the Agency placed certain probationary employees on performance assistance plans, the Union filed a grievance, which was unresolved and submitted to arbitration. Although the Arbitrator did not expressly frame an issue, he stated that "[t]he grievance centers around the Agency's use of informal assistance for probationary/excepted service employees" as well as the Union's allegation "that in the implementation of assistance [ v59 p308 ] plans, the Agency improperly relied on numeric indicators." Award at 2.

      As relevant here, the Arbitrator found that the Agency "violated certain provisions of the contract and applicable regulations" by failing to include critical elements in the probationary employees' PDs. Id. at 43. However, the Arbitrator declined to direct the Agency to reinstate any probationary employees who were not before him, and he found that no probationary employees who were "named in the grievance" or "testified at the hearing will be discharged." Id. at 44.

      The Arbitrator rejected the Union's claim that the Agency failed to reasonably accommodate one sight-impaired and one learning-impaired probationary employee. With regard to the sight-impaired probationary employee, the Arbitrator found that the Agency "introduced evidence that it was doing everything in its power to attain compatible computer systems so that she could perform her job." Id. at 49. With regard to the learning-impaired probationary employee, the Arbitrator found that the Agency did not "behave[] unreasonably when it refused retraining in areas where her performance was deemed adequate as opposed to having her retrained only in areas of her job which she was not then performing in a satisfactory manner." Id.

      The Arbitrator also rejected the Union's claim that the Agency violated Article 21 of the parties' agreement by relying on numerical indicators in evaluating probationary employees' performance. [n1]  In this connection, the Arbitrator found that Article 33, Section 1 of the parties' agreement provides that unit employees are covered by the agreement only "to the extent consistent with [the Civil Service Reform Act (CSRA)]," and 5 U.S.C. § 7511 excludes probationary employees from the definition of "employee" for purposes of the CSRA. Id. at 46. The Arbitrator concluded that Article 21 does not apply to probationary employees, and that even if it did apply, the Agency did not violate that Article because it did not base probationary employees' evaluations solely on numerical indicators.

      Additionally, the Arbitrator found that the Agency did not act improperly by evaluating the probationary employees under particular "trainee guidelines[.]" Id. at 45. In so finding, the Arbitrator determined that the guidelines had not expired because even though the local agreement establishing the guidelines included an expiration date, that date did not apply to the guidelines. See id. at 46. The Arbitrator also found that the parties had bargained over the guidelines when they negotiated the local agreement. In making this finding, the Arbitrator found that the local agreement, "which preceded the technical train[ee] guidelines," was not limited to probationary employees in specific positions, but extended to all positions covered by the grievance. Id. at 49.

III.     Positions of the Parties

A.     Union Exceptions

      The Union argues that the award is contrary to 5 U.S.C. § 4302(b)(1) and (2), and 5 C.F.R. §§ 430.204 and 432.103(h). [n2]  In this connection, the Union contends that, as it is undisputed that the probationary employees' PDs do not contain critical job elements, the Arbitrator erred by declining to grant the Union's requested remedy for that violation.

      The Union also argues that the Arbitrator's finding that the Agency reasonably accommodated the two probationary employees is contrary to 29 C.F.R. § 1614.203. [n3]  Specifically, the Union claims that there was no evidence that the accommodations that were denied would impose an undue hardship on the Agency, or that the Agency either discussed with the probationary employees, or attempted to provide, those accommodations. [ v59 p309 ]

      The Union claims that the award fails to draw its essence from the parties' agreement in three respects. First, the Union contends that Article 21 does not exempt probationary employees. Second, the Union asserts that a letter of intent concerning Article 21 indicates that no numerical indicators will be used in performance evaluations until further partnership effort is completed. Third, the Union argues that neither the local agreement, nor any other evidence, establishes that the trainee guidelines would continue to apply after the expiration date in the local agreement.

      In addition, the Union argues that the award is based on four nonfacts. First, the Union asserts that the Arbitrator erred in finding that the grievance involves only probationary employees because the grievance and the arguments in the Union's post-hearing brief are not limited to probationary employees. Second, the Union contends that the Arbitrator erred by stating that the local agreement and trainee guidelines apply to positions other than the benefit authorizer position. Third, the Union states that the Arbitrator erred by finding that the local agreement preceded the trainee guidelines. Fourth, the Union asserts that the Arbitrator erred in finding that no probationary employees would be discharged because the sight-impaired probationary employee was terminated after the hearing.

      Finally, the Union argues that the award is ambiguous, incomplete, or contradictory because the Arbitrator failed to address the specific remedy requested. The Union claims that, because the probationary employees' PDs did not contain critical elements, they could not be rated unacceptable, and the award fails to make them whole.

B.     Agency Opposition

      The Agency contends that the award is not contrary to law, rule, or regulation. With regard to the probationary employees' PDs, the Agency asserts that the probationary employees were given other documents that detailed their performance expectations, and any award ordering reinstatement would violate § 7121(c)(4) of the Statute. [n4]  The Agency also asserts that it provided reasonable accommodations, as evidenced by hearing testimony.

      The Agency argues that the award is consistent with Article 21 and the letter of intent concerning that Article because the pertinent sections of those documents do not apply to probationary employees. In addition, the Agency claims that hearing testimony supports the Arbitrator's finding that the trainee guidelines remain in effect.

      The Agency also argues that the award is not based on nonfacts, contending that the Union produced no witnesses to demonstrate that any non-probationary employees are involved in this case. In addition, the Agency claims that the award is not ambiguous, incomplete, or contradictory, because the Arbitrator had discretion not to grant a remedy. Finally, the Agency disputes the Union's assertion that the sight-impaired probationary employee has been terminated.

IV.     Analysis and Conclusions

A.     The award is not contrary to law, rule, or regulation.

      When an exception involves an arbitration award's consistency with law, the Authority reviews the question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     5 U.S.C.§ 4302(b)(1) and (2), and 5 C.F.R. §§ 430.204 and 432.103(h)

      The Union argues that the award is contrary to 5 U.S.C. § 4302(b)(1) and (2), and 5 C.F.R. §§ 430.204(b) and 432.103(h), because the Arbitrator declined to order reinstatement of any terminated probationary employees. Nothing in the cited statutes or regulations required the Arbitrator to grant reinstatement, and the Authority has held that probationary employees are precluded from filing grievances concerning their removals. See, e.g., AFGE, Local 2006, 58 FLRA 297, 298 (2003). Even if the cited statutes or regulations did require reinstatement of terminated probationary employees, the Arbitrator found that no probationary employees who are "named in the grievance" or who "testified at the hearing will be discharged[,]" Award at 44 -- a factual finding that, as discussed infra, section IV.C., the Union has not shown to be deficient. Accordingly, we deny the exception. [n5]  [ v59 p310 ]

2.     29 C.F.R. § 1614.203

      Under the Rehabilitation Act, 29 U.S.C.§ 701 et. seq., Federal agencies must provide reasonable accommodations for qualified handicapped employees unless they can show that to do so would impose undue hardship on their operations. See United States DOJ, INS, 57 FLRA 254, 255 (2001). The relevant regulation defines "reasonable accommodation" as "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position[.]" 29 C.F.R. § 1630.2(o)(ii).

      The question whether a proposed accommodation is reasonable is "fact-specific" and must be evaluated on a "case-by-case basis." United States Dep't of the Treasury, IRS, Austin Serv. Ctr., 58 FLRA 546, 548 (2003) (citing Wernick v. Fed'l Reserve Bank of N.Y., 91 F.3d 379, 385 (2d Cir. 1996) (IRS Austin)). An employer is not obligated to provide an employee the accommodation requested; the employer need only provide some reasonable accommodation. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002); EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 951 (7th Cir. 2001); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998).

      The Arbitrator found that the Agency reasonably accommodated the sight-impaired and learning-impaired probationary employees. With regard to the sight-impaired probationary employee, the Arbitrator noted that employee's testimony that although she was not given the reader she requested when she was first hired, she was given one when she was assigned to the training module. See Award at 14. With regard to the learning-impaired probationary employee, the Arbitrator found that the Agency did not act unreasonably in denying that employee training in areas where she was performing adequately. The Union does not state that the accommodations that were provided to these probationary employees were insufficient to enable them to perform the essential functions of their positions, nor does the Union explain why any other accommodations would have been necessary for that purpose. Accordingly, we conclude that the Union has not demonstrated that the Arbitrator's finding of reasonable accommodation is deficient, and we deny the exception. Cf. IRS Austin, 58 FLRA at 548 ("where an accommodation was provided, the grievant was able to perform her duties with that accommodation, and the [a]rbitrator provided no legally recognizable basis for concluding that the accommodation was not proper[,]" the Authority set aside the finding that the agency failed to reasonably accommodate the grievant).

B.     The award draws its essence from the parties' agreement.

      In resolving exceptions that contend that an award fails to draw its essence from a collective bargaining agreement, the Authority applies the deferential standard of review that the Federal courts apply in reviewing awards in the private sector. See, e.g., SSA, Woodlawn, Md., 54 FLRA 1570, 1579 (1998) (citing United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (DOL)). In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established 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 purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. DOL, 34 FLRA at 575.

      The Union argues that the Arbitrator erred in finding that Article 21 of the agreement does not apply to probationary employees. The Arbitrator based this finding on his determinations that: Article 33, Section 1 of the agreement provides that the agreement applies only to the extent consistent with the CSRA; and the CSRA (at 5 U.S.C.§ 7511) excludes probationary employees from the definition of "employee." [n6]  The Union does not explain why it was irrational, unfounded, implausible, or in manifest disregard of the agreement for the Arbitrator to interpret Article 33 as incorporating the definition of "employee" from § 7511, and concluding that Article 21 does not cover probationary employees -- particularly given the fact that hearing testimony supports this conclusion. See Award at 24-25 (testimony that pertinent sections of Article 21 do not apply to probationary employees). Further, the Union's claim that the Arbitrator "appears to imply" that the Agency can apply certain provisions of Article 21 to the probationary employees "but does not have to comply with other provisions[,]" is misplaced because the Arbitrator did [ v59 p311 ] not find that the Agency can apply some provisions of Article 21 to the probationary employees. Exceptions at 9.

      The Union's second essence argument relies on a letter of intent concerning the substantive terms of Article 21. As discussed above, the Union has not demonstrated that the Arbitrator erred in finding Article 21 inapplicable here. Accordingly, the substantive terms of Article 21 are irrelevant, and the Union's reliance on the letter of intent regarding those terms is misplaced.

      With regard to the Union's argument that the trainee guidelines are no longer in effect, the Arbitrator found that the sentence in the local agreement concerning the expiration date of the pilot training module did not refer to the trainee guidelines, and he concluded that the termination date did not apply to those guidelines. The Union provides no basis for finding that this interpretation of the local agreement is irrational, unfounded, implausible, or in manifest disregard of the agreement. Accordingly, we deny the exception.

C.     The award is not based on nonfacts.

      To establish that an award is based on a nonfact, the excepting party must establish that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties had disputed before the arbitrator. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      Despite its claim that the Arbitrator erroneously assumed that the grievance involves only probationary employees, the Union provides no evidence indicating that any of the individuals involved in the grievance are not probationary employees. Accordingly, the Union does not demonstrate that a central fact underlying the award is clearly erroneous, but for which the Arbitrator would have reached a different conclusion.

      Further, while the Union argues that the Arbitrator erred by finding that the local agreement preceded the trainee guidelines, "as evidenced by . . . the local agreement[,]" the Union does not demonstrate that the Arbitrator's finding is clearly erroneous. Exceptions at 14. In this connection, although the local agreement references "the Agency's decision to . . . establish guidelines for technical trainees," Exceptions, Attachment 13 at 1, the agreement does not indicate that the guidelines had already been implemented when the agreement was reached. Even assuming that the Arbitrator's finding is clearly erroneous, the Union does not explain how that finding is a central fact underlying the award, but for which the Arbitrator would have reached a different conclusion.

      With regard to the Union's argument challenging the Arbitrator's interpretation of the local agreement, and the trainee guidelines incorporated therein, an arbitrator's interpretation of an agreement does not constitute a matter that can be challenged as a nonfact. See United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 489, 493 (2001). Accordingly, the Union's argument provides no basis for finding that the award is based on a nonfact.

      The Union contends that the Arbitrator erred by finding that none of the probationary employees who testified were discharged. In this connection, the Union claims -- and the Agency disputes -- that one of the probationary employees who testified was terminated two weeks after the hearing. Evidence that comes into existence after the close of an arbitration hearing does not provide a basis for finding an award deficient. See NAGE, Local R4-45, 53 FLRA 517, 519 (1997). Accordingly, the Union's argument regarding events allegedly occurring after the hearing provides no basis for finding the award deficient, and we deny the exception.

D.     The award is not ambiguous, incomplete or contradictory.

      The Union argues that the award is incomplete, ambiguous or contradictory so as to make implementation impossible. For an award to be found deficient on this ground, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. See United States Dep't of Veterans Affairs, Gulf Coast Veterans Health Care Sys., Biloxi, Miss., 57 FLRA 77, 79 (2001).

      The Union's argument -- that the Arbitrator failed to address the specific remedy requested -- does not explain how implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. Accordingly, the Union does not demonstrate that the award is ambiguous, incomplete, or contradictory, and we deny the exception.

V.     Decision

      We deny the Union's exceptions.



Footnote # 1 for 59 FLRA No. 47 - Authority's Decision

   Article 21 provides, in pertinent part, that management may not establish a performance assessment system that is "based on numerical goals and/or numerical performance levels[.]" Award at 5.


Footnote # 2 for 59 FLRA No. 47 - Authority's Decision

   5 U.S.C.§ 4302(b)(1) and (2) provide, respectively and in pertinent part, that performance appraisal systems shall "establish[] performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria[,]" and provide for "communicating to each employee the performance standards and the critical elements of the employee's position[.]"

5 C.F.R. § 430.204(b) provides, in pertinent part, that performance appraisal systems "shall . . . (1) Provide for --(i) Establishing employee performance plans, including, but not limited to, critical elements and performance standards[.]"

5 C.F.R. § 432.103(h) provides that, for purposes of 5 C.F.R. part 432, "Unacceptable performance means performance of an employee that fails to meet established performance standards in one or more critical elements of such employee's position." (Emphasis in original.)


Footnote # 3 for 59 FLRA No. 47 - Authority's Decision

   29 C.F.R. § 1614.203 provides, in pertinent part:

(a) Agencies shall give full consideration to the hiring, placement and advancement of qualified individuals with disabilities.
(b) The standards used to determine whether section 501 of the Rehabilitation Act of 1973 . . . has been violated . . . shall be the standards applied under Titles I and V . . . of the Americans with Disabilities Act of 1990 [the ADA] . . . [which] are set forth . . . at 29 CFR part 1630.

Footnote # 4 for 59 FLRA No. 47 - Authority's Decision

   Section 7121(c) of the Statute provides, in pertinent part, that grievance procedures "shall not apply with respect to any grievance concerning--. . . (4) any examination, certification, or appointment[.]"


Footnote # 5 for 59 FLRA No. 47 - Authority's Decision

   In these circumstances, we do not address further the Agency's argument that, if the Arbitrator had ordered reinstatement, then the award would conflict with § 7121(c)(4) of the Statute, although Chairman Cabaniss would find that § 7121(c)(4) would also preclude these probationary employees from filing grievances concerning their removals.


Footnote # 6 for 59 FLRA No. 47 - Authority's Decision

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