26:0860(101)AR - HCFA and AFGE, Local 1923 -- 1987 FLRAdec AR

 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.