U.S. Federal Labor Relations Authority

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32:0806(118)AR - - SSA and AFGE - - 1988 FLRAdec AR - - v32 p806

[ v32 p806 ]
The decision of the Authority follows:

32 FLRA No. 118












Case No. O-AR-1450
(31 FLRA 1277)



I. Statement of the Case

This matter is before the Authority on a request filed by the Union seeking reconsideration of the Authority's decision of April 28, 1988, which set aside an arbitrator's award. The Agency did not file an opposition.

For the reasons discussed below, we deny the request.

II. Background

The grievance submitted to the Arbitrator concerned the performance rating the grievant received on two job elements of her annual performance appraisal. The Arbitrator determined that a fair evaluation would have given the grievant ratings on the two disputed ratings that were equal to or better than the ratings she had received the previous year. Accordingly, the Arbitrator ordered the grievant's performance appraisal rating for those two job elements changed to a higher rating.

We found that the Arbitrator did not make the finding required to cancel a performance rating: that the existing performance standards were applied to the grievant in violation of law, regulation, or the parties' collective bargaining agreement. See Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988). Instead, the Arbitrator directed the Activity to raise the grievant's performance appraisal ratings for the two disputed elements based only on his finding of what would have been a "fair" evaluation. Therefore, we held that the award was deficient and set it aside.

III. Union's Request For Reconsideration

The Union contends that the Authority erred in concluding that the Arbitrator did not find that the existing standards were applied to the grievant in violation of law, regulation, or the parties' collective bargaining agreement. The Union states that the issue before the Arbitrator was whether management's actions violated applicable laws, regulations, or certain articles of the parties' collective bargaining agreement, including Article 21, Section 3, which provides that "[p]erformance standards will be applied in a fair and equitable manner." The Union maintains that the Arbitrator found that the application of the performance standards violated Article 21, Section 3. The Union also maintains that the Arbitrator found other violations of the agreement and that "[b]ut for the Arbitrator's finding of these violations, he could not have found the grievance in the Union's favor." Request For Reconsideration at 1.

The Union further asserts that "[f]or the FLRA to hold the arbitrator to unrealistic standards as to content in the construct of the award would countermand the 'swift and economical method' the parties negotiated into the contract." Id. at 2. The Union also claims that under court decisions in both the private and Federal sectors, arbitrators are not required to "justify" their decisions. Id.

After filing its request for reconsideration, the Union submitted to the Authority a letter from the Arbitrator clarifying his award. The request for clarification had been requested unilaterally by the Union after our decision in 31 FLRA 1277 was issued. In his clarification, the Arbitrator states that he had found that the "employer violated the contract provision of fairness and objectivity." Arbitrator's Clarification at 5.

IV. Discussion

Section 2429.17 of our Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsideration of a decision of the Authority. Here, however, the Union has not established "extraordinary circumstances" within the meaning of section 2429.17.

The arguments presented by the Union in support of its request constitute nothing more than disagreement with the Authority's decision. In our decision, we addressed the findings an arbitrator must make in order to cancel a performance rating. We concluded that the Arbitrator did not make the required findings. The Union's request for reconsideration is simply an attempt to relitigate the merits of this case. See, for example, Health Care Financing Administration and American Federation of Government Employees, AFL-CIO, Local 1923, 32 FLRA 250 (1988).

Further, once we have set aside an arbitration award, the arbitrator is not empowered to reopen the matter to clarify the award unless both parties request the arbitrator to do so. See Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410 (1988). In the instant case, the Union unilaterally requested the Arbitrator to clarify the award after it was set aside by the Authority. Therefore, the Arbitrator was not authorized to clarify his award and the "clarification" provides no basis for reconsideration of our decision.

V. Order

The Union's request for reconsideration is denied.

Issued, Washington, D.C.,

Jerry L. Calhoun, Chairman
Jean McKee, Member

(If blank, the decision does not have footnotes.)