46:0451(39)AR - - Assoc. of Government Employees Local R1-109 and VA Medical Center Newington, CT - - 1992 FLRAdec AR - - v46 p451
[ v46 p451 ]
The decision of the Authority follows:
46 FLRA No. 39
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER
November 2, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Roland W. Breault filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance challenging the validity and application of an employee's performance standards and elements. For the following reasons, we conclude that the Union's exceptions do not demonstrate that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a police officer, received an overall performance rating of minimally successful for the appraisal period ending March 31, 1991. A grievance was filed over the matter and, when it was not resolved, was submitted to arbitration on the following issues, as stipulated by the parties:
Do the instant standards constitute an abuse of administrative discretion?
Has the employer applied the standards in violation of law, rule or regulation, or a provision of the parties['] collective bargaining agreement?
If so, what shall the remedy be?
Award at 4.
The Arbitrator denied the grievance. The Arbitrator concluded, with respect to the Union's argument that the grievant's performance standards were "unrealistic, unreasonable, and unattainable[,]" that the Union "did not carry its burden to show arbitrary, capricious or discriminatory actions." Id. at 5. The Arbitrator stated, in this regard:
The Federal Labor Relations Authority . . . has determined that a grievance may not directly challenge the critical elements and performance standards established for a position and that an arbitrator may not substitute his judgment for that of the agency concerning the appropriateness or content of the elements and standards or substitute his judgment for that of management as to what the employee's evaluation should be.
Management exhibits show conclusively that its performance standards meet all the requirements of the Office of Personnel Management (OPM) and the Merit System[s] Protection Board (MSPB).
The Arbitrator noted, with respect to application of the standards, that the grievant conceded responsibility for certain work-related errors. The Arbitrator also noted that "where management's decision is challenged, management's determination is generally up held [sic] unless it can be shown that determination [sic] was unreasonable, arbitrary or capricious." Id. The Arbitrator stated that management had a right "to impose discipline or penalty, in this case a lower rating," for certain conduct and concluded, in this case, that "the penalty was within the reasonable range of discretion which management must have in order to discharge its responsibilities." Id.
The Union argues that the award is deficient on four grounds.
First, the Union claims that the Arbitrator erroneously concluded that, under the Statute, grievances may not challenge the validity of performance standards and elements. Second, the Union argues that the Arbitrator erred in concluding that the Union did not meet the burden of establishing that the challenged performance plan was improper. According to the Union, MSPB decisions require agencies--not unions--to bear the burden of showing that challenged performance plans are reasonable, realistic, and attainable. Third, the Union argues that the award is "too brief, without any findings of fact, conclusionary, ambiguous, and lacks any reasoned articulation of fact upon which it is based." Exceptions at 4 (emphasis omitted). Fourth, the Union claims that the Arbitrator was biased. The Union asserts that the Arbitrator viewed management's rights as "guiding principles" and that he "gave no specific discussion to assertions made by the grievant or the union[.]" Id. at 5.
The Agency argues that the award is consistent with FLRA and MSPB case precedent and that the Arbitrator correctly concluded that grievances may not challenge the content of performance elements and standards. In addition, the Agency claims that the award is not impermissibly ambiguous or incomplete. The Agency argues, in this regard, that the award "is based on reasoned findings of fact." Opposition at 2.
V. Analysis and Conclusions
A. Burden of Proof
"Unless a specific standard of proof . . . is required by law or the parties' agreement, an arbitrator has authority to establish whatever standard he or she considers appropriate and the award will not be found deficient on that basis." U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 412 (1991) (SSA) (citation omitted). There is no contention that the parties' agreement establishes an applicable burden of proof. Moreover, we reject the Union's assertion that such burden of proof is established by law.
In MSPB cases arising under 5 U.S.C. §§ 4303 and 7512, an agency has the burden of establishing that challenged performance plans are valid. For example, Benton v. Veterans Administration, 37 MSPR 284, 286 (1988) ("It is the agency's burden to prove that the standards established do not constitute an abuse of discretion.") (citation omitted). However, "arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over actions not covered by . . . §§ 4303 and 7512." American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 40 FLRA 958, 963 (1991) (Hill AFB). Compare U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 211 (1991) (INS) (although arbitrator was not required to apply certain MSPB standard, arbitrator was not precluded from doing so).
As this case involves a grievance contesting an overall rating of minimally satisfactory, it does not arise under 5 U.S.C. §§ 4303 or 7512 and is not appealable to the MSPB. Accordingly, the Arbitrator was not required to apply MSPB standards regarding burden of proof and we will deny this Union exception. See, for example, Hill AFB, 40 FLRA at 963.
B. Reasoned Decision
We also will deny the Union's exception that the award is deficient because it is "too brief, without any finding of fact, conclusionary, ambiguous, and lacks any reasoned articulation of fact upon which it is based." Exceptions at 4.
The Authority will find an award deficient when it is incomplete, ambiguous, or so contradictory as to make implementation of the award impossible. For example, U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937, 943 (1991). In this case, we find no basis for concluding that the award is deficient on these grounds. As the award denied the grievance, implementation of the award clearly is possible.
Further, in cases such as the one before us "[a]n arbitrator's failure to set forth specific findings, or to specify and discuss all allegations in a grievance, does not provide a basis for finding an award deficient." U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1049 (1991) (Patent Office). In this regard, an arbitrator is not required to specify or discuss specific items of evidence on which an award is based or which otherwise were considered by the arbitrator. For example, U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina and Federal Employees Metal Trades Council, 39 FLRA 987, 993 (1991).
As the Union points out, awards involving requests for attorney fees under the Back Pay Act are deficient unless, as relevant here, they are fully articulated and reasoned and contain certain findings and determinations. For example, American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, 44 FLRA 1287, 1290 (1992). However, the Union's exception provides no basis, and none is otherwise apparent to us, for extending such requirements to other awards. See generally, Wissman v. Social Security Administration, 848 F.2d 176, 178 (Fed. Cir. 1988) ("If there is no contractual or statutory obligation, an arbitrator is not required to set forth findings of fact, much less . . . specific findings . . . ."). Accordingly, we conclude that this Union exception provides no basis for finding the award deficient.
To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. SSA, 39 FLRA at 415.
The Union has not shown that the award is deficient under any of these tests. In particular, the Union has not shown that the Arbitrator was biased in any way or that his evaluation of the evidence prejudiced the Union's rights. In this connection, the Union argues again that the award is deficient because "[t]he [A]rbitrator gave no specific discussion to assertions made by the grievant or the [U]nion, nor [sic] any analysis of the same." Exceptions at 5. However, as discussed in connection with the Union's previous exception, the Arbitrator was not required to set forth specific findings or conclusions. For example, Patent Office, 41 FLRA at 1049. Accordingly, we will deny this exception.
D. Authority Precedent
As stipulated by the parties, the issues before the Arbitrator encompassed the validity of the grievant's performance plan. In particular, the Union asserted that the plan contained "unrealistic, unreasonable, and unattainable standards[.]" Award at 5. The Arbitrator denied this aspect of the grievance. In his opinion accompanying the award, the Arbitrator stated, in relevant part, that:
The [Authority] has determined that a grievance may not directly challenge the critical elements and performance standards established for a position and that an arbitrator may not substitute his judgment for that of the agency concerning the appropriateness or content of the elements and standards . . . .
The Union claims that the Arbitrator's statement is contrary to Authority precedent, including U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (Local 1122).
It is clear that, as the Arbitrator stated, arbitrators are not authorized to remedy grievances by establishing performance standards and elements. Indeed, in Local 1122, the Authority expressly affirmed that "[a]n arbitrator may not determine what the content of an employee's plan should be and may not establish new performance standards." 34 FLRA at 329.
However, it also is clear that a grievance "which alleges a violation of applicable law in the establishment of [a] grievant's performance appraisal plan is arbitrable." Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635 (1987). One could interpret the Arbitrator's reference to grievances which directly challenge performance plans as a finding that such grievances are not arbitrable. Unless such a finding were based on the wording of a collective bargaining agreement, it would be deficient. See id. In this case, however, we conclude that the Arbitrator's statement, and the Union's exception thereto, do not provide a basis on which to find the award deficient. We note three things.
First, the Union has not demonstrated that the grievant's disputed performance plan is inconsistent with law or regulation. As such, the Union has not demonstrated that, by denying the grievance contesting the establishment of the plan, the award is deficient. See U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1346, 35 FLRA 1180, 1183-86 (1990).
Second, there is no basis on which to conclude that, even if the Arbitrator misconstrued Authority precedent, that error was central to the award. In this regard, the Arbitrator did not find the grievance nonarbitrable. Further, the Arbitrator expressly found that exhibits at the arbitration hearing "show[ed] conclusively that [the] performance standards [met] all the requirements" of OPM and the MSPB. Award at 5. It is not clear, therefore, that the Arbitrator would have reached a different decision but for his statement regarding Authority precedent.
Third, it is long established that mere disagreement with an arbitrator's reasoning accompanying an award does not provide a basis for finding an award deficient. For example, INS, 41 FLRA at 212. Indeed, as noted previously, there is no requirement in cases such as this one that arbitra