---

49 FLRA No. 144

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 2608

(Union)

and

U.S. DEPARTMENT OF HEALTH AND

HUMAN SERVICES, SOCIAL SECURITY

ADMINISTRATION, NEW YORK REGION 2

SAN JUAN TELESERVICE CENTER

(Agency)

0-AR-2589

_____

DECISION

July 15, 1994

_____

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 Thomas F. Carey 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 did not file an opposition to the Union's exceptions.

The Arbitrator denied in part and sustained in part a grievance alleging that the Agency violated the parties' collective bargaining agreement and various Memoranda of Understanding (MOA) by the manner in which it appraised the grievants' work performance and scheduled the grievants' work. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In 1992, the Agency directed Teleservice Service Representatives (TSRs) to use new "address formats" implemented by the U.S. Postal Service. Award at 34. According to the Union, the Agency also: (1) began to reference errors in address formats in Employee Assessment System (EAS) reviews and Teleservice Service Center (TSC) observation evaluations; (2) applied a numerical standard for evaluating the amount of time TSRs used to complete interviews; and (3) denied employees opportunities to earn credit hours for the purpose of implementing alternative work schedules. A grievance was filed by 18 TSRs claiming that, by these alleged actions, the Agency violated the parties' collective bargaining agreement and MOA. When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator framed the issues, in pertinent part, as follows:

Issue I - EAS Feedback

Did management violate the National Agreement Article 21 "Performance Appraisal" and/or the Memorandum of Agreement . . . when . . . it . . . cited incorrect address format?

. . . .

Issue II - - Service Observations

Did management violate the National Agreement Article 21 "Performance Appraisal" and/or the Memorandum of Agreement . . . when the service observations it conducted specifically cited in part alleged deficiencies because of incorrect format?

. . . .

Issue III - Handling Times

Did management violate the National Agreement Article 21 "Performance Appraisal" and/or the Memorandum of Agreement . . . when it cited "handling time of calls" as a factor in its performance appraisals?

. . . .

Issue IV - Credit Hours

Did management violate the National Agreement, Article 10 "Hours of Work and Overtime" and "Appendix C" of that Article when it denied the Grievants' request to earn credit hours?

Award at 3-4.

With respect to Issues I and II, the Arbitrator determined, as relevant here, that the Agency violated the parties' agreement and two MOA when it cited errors in address formats in EAS reviews and TSC observation evaluations. In particular, the Arbitrator concluded, as to Issue I, that the change in address formats by the Postal Service was "a factor 'beyond the control of the employee'⁽¹⁾ . . . and 'a recent change of a complex nature [or] relating to [an] infrequently encountered issue,'"⁽²⁾ which the Agency was required to reference on a relevant EAS form when it cited address format errors. Id. at 42. With respect to Issue 2, concerning TSC observation evaluations, the Arbitrator concluded that Article 21, Section 3A of the parties' agreement⁽³⁾ and Article III, Section 4 of the TSC Observation MOU⁽⁴⁾ "mandated that reference to this change accompany negative evaluation comments about address formats." Id. The Arbitrator concluded that, to remedy the Agency's violations of the parties' agreements, the Agency should prepare addenda to the EAS reports and TSC observation evaluations of grievants who received critical comments about address formats. In particular, the Arbitrator directed the Agency to note that "the correct address format required by the Postal Service was . . . a change of either a complex nature or an infrequently encountered issue." Id. at 43.

With respect to issue III, the Arbitrator concluded that, although the Agency had "goals" concerning the amount of time TSRs should use to conduct interviews, that fact did not "translate into a numeric[al] performance standard." Id. at 45. The Arbitrator also found that "the Agency [took] into account not only handling time but the content of the call as well." Id. Based on these findings, the Arbitrator concluded that the Agency did not improperly implement numerical performance standards in violation of the parties' agreement.

As for Issue IV, the Arbitrator noted that Appendix C of the parties' agreement "expressly condition[ed] the opportunity for employees to earn credit hours on management's determination of available work."⁽⁵⁾ Id. at 47. Moreover, according to the Arbitrator, the use of religious compensatory time by employees and the "'peak and valley'" nature of the Agency's work affected the availability of work for credit hours. Id. at 48. The Arbitrator concluded that the Union had not shown that there was work available to provide employees opportunities to earn credit hours or that the Agency improperly denied the grievants such opportunities.

As his award, the Arbitrator sustained the grievance as to Issues I and II, denied the grievance as to Issues III and IV, and directed the Agency to write addenda to the EAS feedback reports and TSC observation evaluations of grievants who received critical comments about address formats.

III. Exceptions

The Union argues, regarding Issues I and II, that the manner in which the Arbitrator remedied the Agency's violation of the parties' agreement in connection with the changes in address formats fails to draw its essence from the agreement. In particular, the Union argues that, consistent with Article 21, Section 3E of the agreement, the Agency was precluded from evaluating employees on the new address formats because the change in formats was a factor "'beyond the control of the employee . . . .'" Exceptions at 3. The Union claims that, instead of requiring the Agency to prepare addenda to various reports containing references to the format changes, the Arbitrator was required to direct the Agency to eliminate all such references.

The Union also argues, with respect to Issue III, that the Arbitrator exceeded his authority by adding "'handling time'" as a new criteria to the performance standard applicable to TSRs' interviews. Exceptions at 4. In this connection, the Union states that, under the parties' agreement, performance standards cannot be modified "unless there is a written notice . . . to the union . . . ." Id. at 2. In addition, according to the Union, the Arbitrator used "illogical reasoning to reach his conclusion that handling time is not a numerical standard[.]" Id. at 5.

IV. Analysis and Conclusions

For the following reasons, we find that the Union has failed to establish that the award is deficient.

A. Award Draws Its Essence from the Agreement

In order for the Authority to find that an award is deficient on the ground that it fails to draw its essence from an agreement, the party making the allegation must demonstrate 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 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. For example, American Federation of Government Employees, Council 236 and General Services Administration, 47 FLRA 576, 580 (1993).

The Union has failed to demonstrate that the award is deficient under any of the tests set forth above. The Arbitrator concluded that requiring the Agency to prepare an addenda to various reports containing references to the format changes was "mandated" by the parties' agreement and the MOAs. Award at 42. The Union has provided no basis for concluding that the parties' agreement and MOA required the Arbitrator to formulate a different remedy. We conclude that this exception constitutes mere disagreement with the Arbitrator's remedy and does not establish that the award fails to draw its essence from the agreement. See U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 476, 47 FLRA 1053, 1061-62 (1993); U.S. Department of Justice U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees Council of Prison Local 148 C-33, 39 FLRA 1288, 1296-97 (1991). We note, in this regard, that arbitrators have broad authority to fashion a remedy for a violation of a collective bargaining agreement, and that the Authority has consistently denied exceptions that constitute an attempt to substitute another remedy for that formulated by an arbitrator. For example, U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 464 (1991). Id.

The Union has not demonstrated that the award fails to draw its essence from the agreement. Accordingly, we will deny this exception.

B. Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, for example, an arbitrator resolves an issue not submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See U.S. Department of the Air Force, Air Force Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 667, 671-72 (1993).

In this case, one of the issues before the Arbitrator was whether the Agency improperly established a numerical performance standard for handling time, that is, the amount of time TSRs spent in interviews. The Arbitrator concluded that the Agency had not adopted such a standard. Moreover, the Arbitrator found that consideration of handling time in evaluating telephone interviews reasonably bore a relationship to the established performance criteria for interviewing. The Arbitrator's findings and conclusions were directly responsive to the issue before him. In our view, the Union's exception in this regard constitutes mere disagreement with Arbitrator's interpretation of the collective bargaining agreement and, as such, provides no basis for finding the award deficient. For example, General Services Administration and American Federation of Government Employees, Council 236, 47 FLRA 1326, 1331 (1993). The Arbitrator also concluded that the Agency's consideration of handling time in the overall context of the performance standard

C. Award Is Not Based on Nonfacts

We construe the Union's contentions that the Arbitrator used "illogical reasoning to reach his conclusion that handling time is not a numerical standard," as a claim that the award is based on nonfacts. Exceptions at 5. In order to establish that an award is deficient on this ground, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. 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, 1372 (1993). However, exceptions constituting mere disagreement with an arbitrator's factual findings and determinations on disputed or ambiguous evidence do not demonstrate that an award is deficient. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993).

In this case, the Arbitrator found, based on his evaluation of the record, that the Agency did not establish a numeric performance standard to evaluate TSR interviews. Although the Union disputes certain arbitral findings and statements, the Union has not established that any of the disputed findings or statements are clearly erroneous or were central to the award. Therefore, the Union has not demonstrated that the award is based on nonfacts. See, for example, U.S. Department of Defense, Defense Commissary Agency, Pearl Harbor, Hawaii and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 48 FLRA 476, 478 (1993).

V. Decision

The Union's exceptions are denied.

---

---

---

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

1. The Arbitrator cited Article 21, Section 3E of the parties' agreement, which provides, in pertinent part:

E. . . . when rating employees or otherwise applying performance standards, the employer shall consider factors which affect performance that are beyond the control of the employee.

Award at 9.

2. The Arbitrator cited Article II, Section F, of the parties' EAS MOU, which provides, in pertinent part, as follows:

F. Reviews should use judgment when looking at workload items relating to changes in policy, procedures, or guidelines. For example, recent changes of a complex nature . . . should be noted on the [EAS form] and bought to the employee's attention, but with an appropriate reference to

the fact that it related to a change.

Id. at 15.

3. Article 21, section 3A provides, in pertinent part:

A. . . . performance standards . . . must be consistent with the duties in the employee's position description. . . . and their application must be fair, and reasonable, and, to the maximum extent feasible, objective.

Id. at 9.

4. Article III, Section 4, TSC Observation MOU provides as follows:

4. Service observation will be conducted in a fair, objective and equitable manner and may not be used in lieu of disciplinary action.

Award at 17.

5. Appendix C, Section 3A provides, in pertinent part, that "[i]n addition to prior management approval, the working of credit hours is conditioned on the availability of appropriate work." Id. at 7.

---