[ v26 p860 ]
The decision of the Authority follows:
26 FLRA No. 101 HEALTH CARE FINANCING ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1923 Union Case No. 0-AR-1249 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator Mollie H. Bowers 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. II. Background and Arbitrator's Award The grievant is a management analyst in the Agency's Division of General Services. The Arbitrator stated that the Division underwent a reorganization which affected the grievant on December 10, 1985. /*/ According to the Agency, there was no substantive change in the grievant's position description or in his performance standards and elements. The grievant's position description after the reorganization was not signed by the Agency's Classification Specialist until May 9, 1986. On May 14, 1986, the grievant received a progress review, dated May 13, 1986, for the first quarter of 1986 (January 1 to March 31). The progress review rated the grievant as at the "Minimally Satisfactory/Partially Met" level of performance. As a result, the grievant was placed under a formal performance improvement plan. A grievance was filed, claiming that the Agency had violated Article 21, Section 4.B. of the collective bargaining agreement, which provides that "(p)erformance plans and standards may be established only for officially classified positions." The grievance sought as a remedy that the progress review be voided and that all other relief deemed appropriate be granted. Before the Arbitrator, the Union argued that the Agency had violated the parties' contract and that the first quarter progress review must therefore be nullified. The Union asked for a "directed verdict" based on this alleged violation of the contract. The Agency argues before the Arbitrator that since there had been no substantive change in the grievant's position description or his performance standards or elements, the confusion in processing the classification paperwork did not preclude a fair and accurate evaluation of the grievant's progress. After consideration of the evidence submitted into the record by the parties, the Arbitrator orally issued a "directed verdict" for the Union, and later put her decision in writing. As her award, she ordered that "(t)he Grievant's progress review for the period January 1 to March 31, 1986, shall be null and void." III. Positions of the Parties A. The Agency's Exceptions The Agency contends that the Arbitrator's award conflicts with applicable law and that the Arbitrator failed to afford the Agency a fair hearing. Specifically, the Agency argues that the Arbitrator exceeded her authority by (1) denying the Agency its rights under section 7106(a) of the Statute to assess the grievant's performance for the first quarter, and (2) substituting her judgment for that of management as to what the grievant's evaluation and/or rating for the first quarter should be by in effect granting the grievant a "Fully Satisfactory" rating. The Agency maintains that, at most, the Arbitrator should have directed the Agency to reevaluate the grievant's performance for the period January 1 to March 31, 1986. Also, the Agency argues that the Arbitrator denied it a fair hearing because she issued a "directed verdict" without having taken the testimony of the Agency's "scheduled witnesses." B. The Union's Opposition The Union contends that the Agency cannot file exceptions in this instance because the Agency waived its right to file exceptions to arbitrators' awards in expedited arbitrations. The Union also argues that the award negates only a progress review and does not in any way interfere with the Agency's right to assess the grievant's performance and render a performance rating or appraisal at the end of the rating period. Finally, the Union argues that the Agency was not denied a fair hearing, since the Arbitrator proceeded properly under the procedures in the parties' contract for granting a "directed verdict." IV. Analysis and Conclusions Initially, we confirm that the Agency's exceptions are properly before us. We have previously addressed and rejected the Union's argument that under the parties' collective bargaining agreement, exceptions may not be filed to expedited arbitration awards. For example, Social Security Administration and American Federation of Government Employees, Local Union 1923, 25 FLRA No. 37 (1987), slip op. at 3. In Social Security Administration, 25 FLRA No. 37, we also discussed in detail the role of arbitrators in resolving performance appraisal disputes and the principles that have been established regarding arbitrators' awards in those disputes. Id. Based on our decision in Social Security Administration and in the cases cited in that decision, we conclude that the Arbitrators' award in this case impermissibly precludes management from evaluating the grievant's performance for the first quarter of 1986. In ordering that the evaluation of the grievant's work for that period be "null and void," without providing management the opportunity to reevaluate his work for that period, the award in effect requires that the grievant's performance remain unassessed for that period. While we do not condone the Agency's inordinate delay in finalizing the grievant's post-reorganization position description, we must agree with the Agency that the Arbitrator's award is deficient because failure to allow management the opportunity to reevaluate the grevant's performance interferes with management's right under section 7106(a)(2)(A) and (B) of the Statute to evaluate the grievant for the first quarter of 1986. We shall modify the Arbitrator's award accordingly. See U.S. Department of Education and National Council of Department of Education Locals, Council 252, AFGE, Local 3893, 22 FLRA No. 97 (1986), in which we modified the arbitrator's award to allow for the reevaluation of the grievant's work so that the grievant would not be without an appraisal for the period in question; and General Services Administration, Region 10 and American Federation of Government Employees, Council 236, 22 FLRA No. 8 (1986), in which we modified the arbitrator's award to provide for reevaluation where the arbitrator found that management's appraisal of a grievant's performance was not in accord with the agency's performance appraisal system. Finally, we reject the Agency's contention that it was denied a fair hearing. Although we will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by refusing to hear pertinent and material evidence, the Agency does not establish that the award is deficient on this basis. See, for example, National Border Patrol Council and National Immigration and Naturalization Service Council and United States Department of Justice, Immigration and Naturalization Service, 3 FLRA 400 (1980). The Authority has recognized that an arbitrator has considerable latitude in the conduct of the hearing. Id. at 404. The mere assertion that an arbitrator excluded testimony does not establish that an arbitrator failed to conduct a fair hearing and that an award is therefore deficient under the Statute. In this case, the Agency has not substantiated in what way the testimony it had "scheduled" could have changed the facts upon which the Arbitrator based her decision; that is, that the progress review was based on standards for a position that was not officially classified. Indeed, the Agency argues only that the testimony would have shown that the Agency had reasons why it had not earlier accomplished the new classification paperwork. Consequently, this exception provides no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administartion and American Federation of Government Employees, Local No. 547, 24 FLRA No. 93 (1986), in which we found that the instances cited by the union where the arbitrator limited the number of witnesses heard or the documentation allowed did not substantiate in what manner this demonstrated that the arbitrator had failed to conduct a fair hearing. V. Decision For the above reasons, we find that the Arbitrator's award is contrary to section 7106(a) of the Statute and must be modified. Accordingly, the award is modified to read as follows: The grievant's progress review for the period January 1 to March 31, 1986, shall be null and void. The Agency may reevaluate the grievant's performance for the period January 1, 1986 to March 31, 1986 in accordance with applicable legal requirements. Issued, Washington, D.C., April 30, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) It is not clear from the record whether the reorganization took place on December 10, whether it affected the grievant on that date, or whether both occurred on that date.