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48:0607(60)AR - - HHS, SSA, Office of Hearings and Appeals, Jackson, MS and AFGE, Local 3627 - - 1993 FLRAdec AR - - v48 p607

[ v48 p607 ]
The decision of the Authority follows:

48 FLRA No. 60











LOCAL 3627





September 30, 1993


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 Roberta J. Bahakel 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 the grievance of an employee who challenged her performance rating on a particular job element. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant received a level 2 rating in generic job task (GJT) No. 118 (reviews case folders for complete documentation), which resulted in an overall rating of marginally successful for the appraisal period ending September 30, 1992. The grievant filed a grievance contending that GJT No. 118 should not be considered in evaluating her performance and that she should be rated fully successful. When the grievance was not resolved, it was submitted to arbitration.(1)

The Arbitrator rejected the Union's argument that the grievant's performance rating for GJT No. 118 should be set aside because management changed the job standard without allowing the grievant a minimum 120-day period to perform under the new standard. The Union alleged that a management memorandum, dated June 15, 1992, changed the standard by establishing specific time frames for completion of GJT No. 118. The Arbitrator determined that the memorandum did not change the standard for GJT No. 118, "but merely clarified the standard." Award at 3. The Arbitrator stated that "clarifying how the term timely will be applied is not a change in the standard itself. Therefore, the full rating[] period was in effect and the grievant was due to be rated on GJT [No.] 118." Id.

The Arbitrator also rejected the Union's argument that the disputed rating should be set aside because the Agency had assigned overtime and compensatory time work to the grievant during the rating period and, under the parties' collective bargaining agreement, such assignments may be made only to employees who are performing at least at the fully successful level. The Arbitrator determined that the Agency "could not deny the grievant overtime during the rating[] period because by doing so it would be presupposing that the grievant was going to be less than fully successful at the end of the period." Id.

Finally, the Arbitrator noted that the Union "relied a great deal on the provisions of [a Federal Service Impasses Panel] Order dated September 30, 1992." Id. at 4. However, the Arbitrator stated that "[t]here was testimony that the provisions of this order never went into effect . . . ." Id. Therefore, she concluded that the Panel order could not be considered.

Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

The Union asserts that the award is deficient because the Arbitrator disregarded explicit terms of the parties' agreement. In particular, the Union contends that the June 15, 1992, memorandum establishing specific time frames changed the performance requirements for GJT No. 118 and that the Arbitrator's contrary finding "ignores the plain language of the contract and subtracts the specific requirements of Article 21, Section 3C, with respect to defining timeliness before the beginning of an appraisal period." Exceptions at 2 (emphasis in original).(2) In addition, the Union argues that the Arbitrator's findings concerning the assignment of overtime and the grievant's within-grade increase "disregard[ed] the exact and specific terms" of Article 10, Section 4 and Article 22 of the agreement.(3) Id.

The Union also relies on Article 4 of the parties' agreement.(4) According to the Union, "the [A]rbitrator's refusal to apply the provisions of the [Panel's] Order to this case effectively subtracts Article 4 from the contract, disregards the final product of the negotiations concerning performance plans for Fiscal year 1992, and alters the specific intent of the contract concerning negotiations during the term of the contract." Id. at 1. Finally, the Union asserts "that the [A]rbitrator's complete disregard for the clear and unambiguous terms of the contract evidences that she is biased against the Union and that the Union's exception should be sustained." Id. at 3.

B. Agency

As to the substance of the Union's exceptions, the Agency contends that the Union fails to establish that the award is deficient. In the Agency's view, the exceptions merely reflect the Union's disagreement with the award.(5)

IV. Analysis and Conclusions

We construe the Union's arguments that the Arbitrator "disregarded" the "explicit terms of the contract" as an assertion that the award does not draw its essence from the agreement. Exceptions at 1. An award fails to draw its essence from an agreement when the party making this allegation establishes 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 the purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, American Federation of Government Employees, Local 2076 and U.S. Department of Justice, Immigration and Naturalization Service, 47 FLRA 1379, 1385 (1993).

The Arbitrator determined, based on her review of the arguments and evidence before her, and her interpretation of the parties' agreement, that the Agency did not violate Article 21, Section 3C of the parties' agreement by appraising the grievant's performance under GJT No. 118. The Arbitrator also found that the Agency was obligated, under Article 10, Section 4 of the agreement, to assign the grievant overtime work because her rating of record at the time of the assignment was fully successful. In this regard, we also note that Article 22, Section 2 of the agreement provides that the decision to grant a within-grade increase must be supported by the employee's most recent performance appraisal.(6) The Union has not demonstrated that the Arbitrator's interpretation of these provisions of the agreement is irrational, unfounded, implausible, or in manifest disregard of the parties' agreement. Accordingly, the Union has not shown that the award fails to draw its essence from the agreement.

The Union also has not shown that, by failing to apply provisions contained in the disputed Panel Order, the award fails to draw its essence from Article 4 of the parties' agreement. In this connection, we note that the grievance covered an appraisal period ending on September 30, 1992. As the Panel's Order, dated September 30, 1992, did not order retroactive implementation, we have no basis on which to conclude that any portions of the Order were applicable during the appraisal period.

Finally, the Union alleges that the Arbitrator was "biased." Exceptions at 3. To demonstrate that an award is deficient because of an arbitrator's bias, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the arbitrator's part or that the arbitrator engaged in misconduct that prejudiced a party's rights. See, for example, American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1371 (1993). The Union neither asserts nor establishes that the Arbitrator was biased under any of these standards. As such, this exception provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.

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

1. The Arbitrator did not specifically state the issue before her.

2. As relevant here, Article 21, Section 3, provides that:

C. Performance standards: performance standards must be clearly stated in writing before the beginning of the appraisal period and given to the employee at that time. . . . When feasible, terms such as timeliness, . . . will be expressed to indicate . . . how soon, or when, . . . .

3. Article 10, Section 4, provides, in pertinent part:

B. All qualified employees whose performance is at least fully successful will be notified of the availability of overtime.

Article 22 provides, in pertinent part, that:

Within-grade increases will be granted or denied on the basis of whether an employee attains an acceptable level of competence and meets other statutory requirements.

4. Article 4, Section 1 provides, as relevant here, that:

A. The Administration will provide the Union reasonable advance notice prior to implementation of changes affecting conditions of employment subject to bargaining under 5 USC 71. . . .

B. All issues not resolved . . . may be referred to the Federal Service Impasses Panel for resolution under its rules.

5. The Agency also requests that the Union's exceptions be dismissed because the Agency's copy of the exceptions did not include a properly executed certificate of service. As it is clear that the Agency received a copy of the exceptions and filed a timely opposition, and as there is no other basis on which to conclude that the Agency was harmed in any way by the deficiency in the exceptions, we deny the request. See U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1175 (1990).

6. Article 22, Section 2, provides, as relevant here, that:

A. The decision to grant or withhold a within-grade increase must be supported by the employee's most recent appraisal.