American Federation of Government Employees, National Council of Field Labor Locals (Union) and United States, Department of Labor, Philadelphia, Pennsylvania (Agency)

[ v60 p241 ]

60 FLRA No. 53

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL
OF FIELD LABOR LOCALS
(Union)

and

UNITED STATES
DEPARTMENT OF LABOR
PHILADELPHIA, PENNSYLVANIA
(Agency)

0-AR-3804

_____

DECISION

September 15, 2004

_____

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 Stephen F. O'Beirne 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 denied, in part, the Union's grievance alleging that the Agency's new performance standards and elements violated the parties' agreement, law or governing regulations. The Arbitrator found that the Union's remaining claims were not ripe for adjudication. We deny the exceptions.

II.     Background and Arbitrator's Award

      The Agency and the Union are parties to a collective bargaining agreement that became effective on July 1, 2002. Article 43 concerns "the impact and implementation" of Government-wide and Agency regulations regarding performance elements and standards (standards) for bargaining unit employees. Award at 9.

      In June 2002, a management team developed an initial draft of new standards for employees. A final draft of the new standards was issued in October. Copies were distributed to the Union and bargaining unit employees. Many employees submitted negative comments on the content as well as the development and implementation of the new standards. As a result, numerous employee grievances were filed. In February 2003, the parties negotiated a Memorandum of Understanding (MOU) concerning the impact and implementation of the standards.

      The Union continued to object to the new standards, and filed a grievance alleging that the Agency violated the parties' agreement and governing regulations in the manner in which the standards were developed and implemented. The grievance was not resolved and was submitted to arbitration on the following stipulated issues:

Whether [the Agency] violated personnel regulations or the collective bargaining agreement in developing and implementing the Agency's prototype performance elements and standards. If so what shall be the remedy?
Whether the Union's Grievance is grievable and/or arbitrable?[]

Id. at 4. [n1] 

      The Arbitrator found that the Union failed to establish that the Agency violated 5 U.S.C. § 4302 or the Agency's Personnel Regulations (DPR) 430 by excluding the Union and/or employees in the drafting process of the new standards. The Arbitrator found nothing in law, regulations or the parties' agreement that required such participation. Instead, the Arbitrator found that the parties' agreement gives employees the opportunity to meet and discuss standards after receiving them from the supervisor and that the employees had provided comments after receiving the standards. Noting the absence of any duty to bargain over the content of performance elements and standards, the Arbitrator further held that "the fact that the Agency did not change the elements and standards based on the employees' comments does not, in and of itself, establish a violation of the CBA or governing regulations." Id. at 18. [n2]  The Arbitrator also found that, to the extent Executive Order (E.O.) 12871 created a right for the Union to be involved in the drafting process, that Order was no [ v60 p242 ] longer in effect because it was revoked by a subsequent Executive Order, E.O. 13203.

      The Arbitrator also found that, although some supervisors were unable to provide employees with an explanation of the rationale for the elements and standards or to advise employees on what is expected in order to exceed the standards, the Union failed to establish a violation of the agreement. The Arbitrator stated that it was not possible for him to assess what effect the supervisors' conduct had on the rating and review process where it "has not been shown to have affected an employee's performance rating[.]" Id. at 16. The Arbitrator also found that many of the Union's concerns were "answered" and "addressed" by various provisions of the parties' agreement and the MOU. Id. at 13.

      Finally, the Arbitrator found that the Agency did not violate other provisions of the parties' agreement as "[t]he Union did little to explain these allegations . . . ." Id. at 18.

In sum, the Arbitrator found that:
The Performance Standards Grievance is arbitrable. The grievance is denied in part. The Agency did not violate the collective bargaining agreement or governing regulations by failing to include bargaining unit employees and/or the Union in developing new performance standards and elements. The Agency did not violate the CBA or governing regulations by failing to change the performance elements and standards based on the employees' written comments. The Agency did not violate Article 15, Sections 2B and 5B or Article 5, Sections 3 and 4 of the CBA by its conduct in this dispute. The Union's remaining claims are not ripe for adjudication in this arbitration proceeding.

Id. at 19.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the award is contrary to 5 U.S.C. § 4302, 5 C.F.R. Part 430, various provisions of DPR 430, and the parties' agreement. The Union states that "[i]f supervisors themselves could not understand the elements and standards, explain their rationale, or advise employees how to exceed the standards, this does not meet the requirements of" law, regulations, and the collective bargaining agreement. Exceptions at 2. The Union objects to the Arbitrator's characterization of the purpose of the hearing, claiming that although the Arbitrator was correct in stating that the Union "`continues to object to the standards[,]' . . . [t]he purpose of the hearing was to establish that the [Agency] failed in its obligation to correctly implement the performance elements and standards." Id. The Union also claims, without explanation, that the award is contrary to United States Dep't of Labor, 46 FLRA 3 (1992) (Dep't of Labor).

      Next, the Union asserts that the Arbitrator engaged in "circular reasoning," in finding that "there were no violations of the Contract because the Contract covered these areas." Exceptions at 2. In the Union's view, the Arbitrator "recognized the [contract] violations raised by [the Union], but did nothing to remedy them in his Award." Id. The Union argues that, although the Arbitrator found that no employees were adversely affected by management's inability to provide feedback, "it is reasonable to assert that many [employees] failed to exceed [in] one or more of their critical elements because they did not know until the mid-term review . . . how to exceed." Id.

      Further, the Union claims that the Arbitrator agreed with the Union that the standards were not consistent with employees' position descriptions and "identified a violation but provided no remedy." Id. at 3.

      The Union also argues that the Arbitrator erred in finding that, under E.O. 13203, the Agency did not have an obligation under the parties' agreement to include the Union in the process of changing the performance elements and standards. The Union states that the parties' 1997 agreement, implementing E.O. 12871, required the Agency to include the Union "in predecisional involvement[,]" and that the 1997 agreement was in effect when the Agency began the process of changing the standards in March 2002. Id.

      The Union also claims that the Arbitrator failed to rule on a Union exhibit establishing that the district and regional managers could not make changes to the standards, and did not take into account that the MOU was not relevant to the implementation of the new standards.

      Finally, the Union objects to the Arbitrator's statement that the Union was not precluded from raising the issue of employee input in another forum. The Union argues that it "believed that [the arbitration hearing] was that appropriate forum and that the Arbitrator would make a decision accordingly." Id. [ v60 p243 ]

B.     Agency's Opposition

      The Agency asserts that the Union simply disagrees with the Arbitrator's interpretation of the parties' agreement and evaluation of the evidence.

      The Agency also argues that the Authority should not consider the 1997 agreement or the Union's argument that the Arbitrator failed to take into account the requirements of 5 C.F.R. Part 430 as these issues were never submitted to the Arbitrator for resolution.

IV.     Preliminary Matter

      Section 2429.5 of the Authority's Regulations provides, in pertinent part, that "[t]he Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator." 5 C.F.R. § 2429.5.

      The Union argues that the Agency was obligated to include the Union in "predecisional involvement" under the terms of the parties' 1997 agreement, portions of which are attached to the exceptions. Exceptions at 3. We find no evidence in the award, or the record as a whole, that the 1997 agreement or the issue of the parties' obligations under the terms of that agreement were presented to the Arbitrator. Although the Union refers, in its exceptions, to testimony concerning the Executive Orders, the Union did not include the relevant portions of the transcript in its exceptions. As such, there is no basis on which to conclude that the 1997 agreement, and issues pertaining thereto, were before the Arbitrator. Accordingly, we do not consider the Union's exception on this matter.

      We also do not consider the Union's claims regarding 5 C.F.R. Part 430, inasmuch as there is no indication in the record that this issue was raised at arbitration. Consequently, it is not properly before us under § 2429.5. [n3] 

V.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law

      When an exception involves an award's consistency with law, the Authority reviews any 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 an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., 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.

      The Union claims that the Arbitrator's statement, that the supervisors lacked training and/or guidance about the new standards, suggests that the supervisors could not sufficiently explain the rationale of the standards to employees or advise employees as to how to exceed them, in violation of 5 U.S.C. § 4302 and DPR 430(2), (5)(a) and (5)(b). [n4] 

      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, e.g., AFGE, Council 236, 43 FLRA 982, 986 (1992). In addition, appraisal systems must provide for communicating performance standards to employees. Id., 5 U.S.C. § 4302(b)(2). The Merit Systems Protection Board (MSPB) has held that the requirements of 5 U.S.C. § 4302 are satisfied by communicating to employees the standards they must meet in order to be evaluated at a level sufficient for job retention. See Melnick v. Dep't of Housing and Urban Development, 42 MSPR 93, 98 (1989), aff'd 899 F.2d 1228 (Fed. Cir. 1990). Such communication may occur through written instructions, information concerning deficiencies and methods of improving performance, responses to the employee's questions concerning performance, or in any manner calculated to apprise the employee of the requirements against which he is to be measured. See Chaggaris v. General Services Admin., 49 MSPR 249, 254 (1991); Donaldson v. Dep't of Labor, 27 MSPR 293, 298 (1985).

      DPR 430 similarly provides for communicating standards to employees and permitting employees to comment on the standards. Thus, DPR 430(5)(a) states that "[p]erformance plans . . . will be . . . communicated to the employee at the beginning of each appraisal period . . . ." Exceptions Attachment at 3-4. DPR 430(5)(b) provides that "the employee will have the opportunity to meet and discuss [proposed] standards with the supervisor, and to provide his or her written comments." Id at 4.

      We find that the Union has not established that the award is contrary to law or regulation. First, 5 U.S.C. § 4302 does not require that supervisors have a particular [ v60 p244 ] level of knowledge and expertise as to the rationale behind performance elements, or that the employees be advised as to how to exceed the standards. 5 U.S.C. § 4302 requires only that the employees be apprised of the requirements against which they are to be measured. The Arbitrator here found that the standards were provided to employees and were given an opportunity to comment on the standards. The Arbitrator further found that provisions of the parties' agreement and the MOU address concerns about how employees can meet or exceed the standards.

      For the same reason, we find that the Union has not established that the award is contrary to the provisions of DPR 430 cited above. There is no evidence that supervisors were unable or failed to meet and discuss the standards with employees or to properly include employees in the development of the standards. Further, as to the claimed violation of DRP 430(2), the Union has not offered any explanation of how the award is in conflict with this definitional section of the regulations.

      Finally, the Union errs in claiming that the Arbitrator found a violation of law, namely, that the standards were inconsistent with employees' positions descriptions, but provided no remedy. The Arbitrator made no such finding.

      In sum, we deny this exception.

B.     The Award Does Not Fail to Draw its Essence from the Parties' Agreement

      In resolving exceptions that challenge an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential "essence" standard of review that the Federal courts apply in reviewing awards in the private sector. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). In order for an award to be found deficient as failing to draw its essence from the 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. Id. at 575.

      The Union asserts that the supervisors' inability to understand the new elements, explain their rationale, and advise employees how to exceed the standards does not meet the requirements of Article 43 of the parties' agreement. [n5]  The Union also claims that the Arbitrator's reasoning is "circular," and that he "recognized the violations raised by [the Union] but did nothing to remedy them in his award." Exceptions at 2.

      The relevant provisions of the parties' agreement provide for employee input into their standards, including the opportunity for employees to discuss the standards and provide written comments. The agreement also entitles employees to an explanation of the rationale for the standards and, on request of an employee, an explanation as to how to exceed a standard. As stated above, the Arbitrator found that the parties' agreement gave employees the opportunity to meet and discuss standards after receiving them from the supervisor. The Union has not established that this interpretation of the agreement is irrational or implausible. As for additional requirements under the contract, the Arbitrator essentially found that the application of the standards to specific employees was not ripe for adjudication. Award at 14-16. The Union has not shown that this determination fails to draw its essence from the agreement.

      Finally, the Union's claim that the reasoning in the award is circular does not demonstrate that the award fails to draw its essence from the agreement. Although the issue before the Arbitrator included a claimed violation of the parties' agreement, the Arbitrator's finding that the Union's concerns were addressed in the agreement or the parties' MOU is a plausible interpretation of those negotiated agreements.

      Accordingly, we deny this exception.

C.     Fair Hearing

      The Authority will find an award deficient if an arbitrator failed to conduct a fair hearing by, for example, refusing to hear evidence which is pertinent and material or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 3615, 57 FLRA 19, 22 (2001); United States Dep't of Justice, Federal Bureau of Prisons, Federal Prison Camp, Allenwood, Pa., 35 FLRA 827, 829 (1990). An arbitrator has considerable latitude in the conduct of a hearing, however, 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, e.g., United States Dep't of the Army, Army Reserve Personnel, St. Louis, Mo., 35 FLRA 1200, 1205 (1990). Disagreement with an arbitrator's evaluation of evidence and testimony, including the determination of the [ v60 p245 ] weight to be accorded such evidence, provides no basis for finding the award deficient. See AFGE, Local 3295, 51 FLRA 27, 32 (1995). Also, issues involving an arbitrator's conduct at the hearing that could have been, but were not, raised before the arbitrator will not be considered absent extraordinary circumstances. See Bremerton Metal Trades Council, 59 FLRA 583, 587-88 (2004).

      The Union argues that the Arbitrator failed to rule on a Union exhibit that, in the Union's view, would have established that the district and regional managers could not make changes to the standards. We construe this argument as a claim that the Arbitrator failed to conduct a fair hearing.

      The Union has not established that the exhibit in question would have been pertinent or material to the outcome of this case. As such, the Union has not demonstrated that the Arbitrator erred in his evaluation of that evidence.

      Accordingly, we deny this exception.

D.     Exceeded Authority

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).

      The Union objects to the Arbitrator's statement that the Union was not precluded from bringing a claim in an appropriate forum regarding employee input. The Union claims that employee input was an issue before the Arbitrator and that the Arbitrator should have resolved it. We construe this argument as a claim that the Arbitrator exceeded his authority by failing to resolve an issue submitted to arbitration.

      In our view, the Arbitrator did not fail to resolve the stated claim. The Arbitrator essentially found that the issue of input regarding specific employees was not ripe for adjudication. The Union has not established that, in these circumstances, the award is deficient.

      Accordingly, we deny this exception.

E.     Nonfacts

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. 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 on any factual matter that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union asserts that the Arbitrator: (1) misstated the purpose of the hearing; (2) failed to consider that the parties' MOU "pointed toward what management would do starting at the mid-term reviews in May 2003 and upon performance appraisal in September and October 2003" and not the implementation of the standards; and (3) erred in finding that employees were not adversely affected by the Agency's "inability to provide feedback to employees[.]" Exceptions at 2, 3. We construe these arguments to be a claim that the award is based on nonfacts.

      As to its first argument, the Union cites the Arbitrator's statement that the Union "continues to object to the standards[,]" and claims that, although the statement is accurate, the "purpose of the hearing was to establish that the [Agency] failed in its obligation to correctly implement the performance elements and standards." Id. at 2. The Arbitrator's statement regarding the Union's continued objection to the standards is not a central fact underlying the award. Therefore, the Union has not established that the award is based on a nonfact in this regard. See NFFE, Local 1636, 45 FLRA 1045, 1047-48 (1992).

      As to its second argument, the Union argues that the 2003 MOU did not address the implementation of the elements and standards in October and November 2002, but addressed what needed to occur starting at the mid-term reviews in May 2003 and performance appraisals in September and October 2003. However, the Arbitrator did not rely on the MOU in finding that the Agency did not violate the law or the parties' agreement in implementing the new standards in October and November 2002. As the Union has not established that the Arbitrator's reliance on the MOU was a central fact underlying the award, we find that the Union has not established that the award is based on nonfacts in this regard. Id.

      Finally, as to its third argument, the Union claims that it is reasonable to assert that employees failed to exceed in their critical elements because they were not given the requisite feedback. However, the Arbitrator found that he was unable to determine what effect the implementation had on the employees' rating and review process. Award at 16. The Union has not established in this regard how any central fact underlying the award is erroneous, but for which the Arbitrator would have reached a different conclusion.

      Accordingly, we deny this exception.

VI.     Decision

      The Union's exceptions are denied. [ v60 p246 ]


APPENDIX

Department of Labor Personnel Regulations

      DPR 430(2) provides the definitions of terms used in the Agency's performance management program. DPR 430(5)(a) provides that "[p]erformance plans . . . will be prepared by the supervisor for each employee, reviewed by a higher level official and communicated to the employee at the beginning of each appraisal period . . . ." Exceptions Attachment at 3-4. DPR 430(5)(b) provides that:

"[e]mployees will be encouraged to participate with the supervising official in developing performance plans, on a face-to-face basis to the extent practicable. After receiving proposed elements and standards from the supervisor, the employee will have the opportunity to meet and discuss these standards with the supervisor, and to provide his or her written comments. Final authority for establishing such plans, however, rests with the supervising official."

Article 43 - Performance Management System

Section 2 - Procedures for Developing Elements and Performance Standards.

Consistent with Management's right to assign work, the performance elements should be consistent with the duties and responsibilities contained in an employee's position description.

B. In establishing standards, due consideration will be given to employee input.
C. Employees are entitled to an explanation of the rationale for their elements and standards.
D. Due consideration will be given the employee as to the resources available and the authority delegated necessary to meet the identified standards and elements.

Section 3 - Performance Standards

After receiving proposed elements and standards from the supervisor, the employee will have the opportunity to meet and discuss these standards with the supervisor, and to provide his or her written comments.
When performance standards are developed which have more than one criterion, employees will be advised as to the relative importance of the criteria contained within the standards.

. . . .

Upon request, supervisors will inform employees orally on what is expected in order to exceed a standard.

. . . .

Section 8 - Initiation of Appraisal Period

A. At the bargaining unit employee's request, when assigned a new supervisor, the new supervisor will discuss the bargaining unit employee's performance plan.
B. After receiving the tentative elements and standards from the supervisor, the employee will have a period not to exceed ten working days within which to examine and consider this material and to meet with the supervisor to discuss these elements and standards.

Award at 9-11.



Footnote # 1 for 60 FLRA No. 53 - Authority's Decision

   There is no exception to the Arbitrator's finding that the grievance was arbitrable and it will not be addressed further.


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