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