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55 FLRA No. 13
U.S. DEPARTMENT OF THE INTERIOR
U.S. GEOLOGICAL SURVEY
NATIONAL MAPPING DIVISION
MAPPING APPLICATIONS CENTER
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, Local 1309
December 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Paul J. Fasser, Jr. filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator considered a grievance concerning performance appraisals for transferred employees and an information request regarding performance appraisal procedures. [n1] The Arbitrator sustained the grievance in part. For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
On October 1, 1995, the United States Geological Survey's National Mapping Division (NMD) reorganized its headquarter's staff. As a result of this reorganization, sixty professional employees were transferred from NMD headquarters to the Mapping Application Center (the Agency or MAC), and thus became Agency employees. Since 1963, the National Federation of Federal Employees, Local 1309 (the Union) has been the exclusive representative of professional employees at the Agency. The transferred employees were not previously represented by a labor organization. Upon their transfer, these employees continued to perform the same or related duties they had performed at NMD. On March 18, 1996, the Washington Regional Office of the Authority issued an order amending the existing bargaining unit at the Agency to include these employees.
The Union was concerned about how the Agency would take into account in performance appraisals the performance of the transferred employees before they were included in the bargaining unit. The relevant appraisal period was from April 1, 1995, to March 31, 1996. The transferred employees had worked outside the bargaining unit in NMD during that period from April 1, 1995, until March 18, 1996, when they were included in the unit.
On March 26, 1996, the Union requested information concerning "appraisals procedures" for all bargaining unit employees. Award at 4. It was the Union's view, that the information would allow it to determine whether to file grievances on behalf of individual employees who had complaints. In response to that request, the Agency requested a clarification of the Union's request for information.
On April 4, 1996, the Agency issued a memorandum to all Agency employees concerning performance appraisals. The memorandum stated that the transferred employees' performance would not be evaluated under interim performance appraisals for the period they were not part of the bargaining unit. The memorandum stated that Agency supervisors, and not NMD supervisors, would be the rating officials for performance appraisals. The memorandum added that transferred employees whose duties had not changed significantly after the merger would receive an appraisal based on their NMD work plan. The memorandum further stated that transferred employees whose duties had changed significantly after the merger would receive a new work plan. The performance appraisal rating period of these employees would be extended 120 days, at which point they would be given an appraisal.
On April 5, 1996, the Union filed the grievance at issue. The Union alleged that the Agency, via its memorandum, improperly directed certain NMD managers not [ v55 p31 ] to provide the transferred employees interim performance ratings, other than "presumptive satisfactory," for a portion of the appraisal period the employees were not part of the bargaining unit at the Agency. Id. at 1. The Union also alleged that the Agency failed to provide it information necessary to file grievances on behalf of individual employees related to performance appraisals.
As a remedy, the Union requested that NMD supervisors evaluate the transferred employees under interim performance appraisals. The Union also requested that the Agency provide the sought information. The Union further requested additional labor-management training for certain supervisors.
In response to the grievance, the Agency asserted that the grievance was "not specific" and that "any complaints of individual employees should be made once the employees are given their performance evaluations." Id. at 7. The grievance was submitted to arbitration.
Before the Arbitrator, the Agency contended that the Union could not file a grievance concerning the time period that the employees were outside the bargaining unit. See Id. at 12. The Union asserted that these employees should have filed a grievance "under the [a]dministrative [g]rievance [p]rocedure for non-[b]argaining [u]nit employees." Id. The Agency also stated that it decided not to use "presumptive satisfactory" as an interim rating because there was no basis for such a rating in the regulations.
The parties did not stipulate the issues to be resolved by the Arbitrator. Instead, as relevant to these exceptions, the Arbitrator found that the grievance raised the following issues:
[W]hether a proper performance appraisal can be made for the transferring employees based on the portion of the appraisal year spent in the MAC Division and whether an appraisal by a MAC Supervisor could properly reflect superior performance of a transferring employee for the portion of the appraisal year that the employee worked in the NMD Division. . . . [W]hether the Activity provided the Union with sufficient information to enable it to responsibly pursue the grievance. . . .
Id. at 14-15.
The Arbitrator sustained the grievance as to the first of these issues, and ordered remedial actions that included the provision of "information necessary to review the appraisals." Id. at 16. Notwithstanding the Agency's argument that the issue of interim performance appraisals for the transferred employees was not grievable to the extent that issue concerned employees' performance before they were part of the bargaining unit, the Arbitrator addressed the merits of that issue. The Arbitrator found that a proper performance appraisal should encompass an employee's performance for the time spent outside the bargaining unit. Id. at 16. The Arbitrator reasoned that the transferred employees compete with other employees for purposes of promotion, incentive awards and reduction-in-force ranking on the basis of their work performance for the entire year.
The Arbitrator found that evaluation of the transferred employees under interim appraisals for the period they were not part of the bargaining unit would provide adequate protection to them. The Arbitrator stated that there was "not clear . . . evidence" that NMD supervisors provided those employees such appraisals. Id. The Arbitrator further stated, however, that the evidence did not support the Union's contention that the transferred employees were provided performance appraisal ratings of "presumptive satisfactory." See id.
The Arbitrator found that the record evidence was insufficient for him to make a determination on whether the performance appraisals were proper for evaluating the transferred employees. The Arbitrator stated that individual employee complaints were of an "obscure nature[.]" Id. The Arbitrator further stated that neither party had introduced into evidence the performance evaluations the Agency provided the employees. The Arbitrator concluded that "this deficiency in the evidence would not have occurred[,]" had the Agency provided the Union the requested information. Id.
As a remedy, the Arbitrator directed the Agency to provide the requested information, including the performance evaluations the Agency provided the employees. The Arbitrator also directed the Agency to poll all employees affected by the reorganization to determine whether each of them had complaints or had not been evaluated consistently with applicable rules and regulations. Specifically, the Arbitrator stated "[t]he grievance is granted to the extent that the application of the Activity's performance appraisal policy to transferring employee[s] or employees who were otherwise affected will be reviewed." Id. at 19. The Arbitrator determined that individual grievances that result from this "review" will not be considered untimely filed, thus permitting future grievances. Id. at 17. The Arbitrator also stated that the "review . . . should not be used to re-evaluate an employee where an appraisal has already been made." Id.
Finally, the Arbitrator explained that the review should not be used as a basis to challenge the contents of [ v55 p32 ] an appraisal. However, the Arbitrator rejected the Union's remedial request for additional labor-management training for certain supervisors.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient in two respects. First, the Agency contends that the Arbitrator erred in considering on the merits the issue of interim performance appraisals for the transferred employees. The Agency argues that this issue encompasses matters that occurred when the transferred employees were not part of the bargaining unit, and is not arbitrable under the parties' collective bargaining agreement. Addressing the merits of the Arbitrator's award, the Agency argues that the decision regarding the application of interim performance appraisals was not made by the Agency, the level of exclusive recognition. Thus, the Agency maintains that the issue of interim appraisals for the evaluation of the transferred employees is "outside the purview of the negotiated grievance procedure prescribed by the [c]ollective [b]argaining [a]greement." Exceptions at 2.
Furthermore, the Agency contends that the Arbitrator exceeded his authority. The Agency argues that the Arbitrator fashioned a remedy even though he failed to resolve the issue of whether the performance appraisals were properly done. In this regard, the Agency asserts that the Arbitrator did not find that the performance appraisals were inconsistent with rule or regulation. The Agency further argues that the Arbitrator's remedial order allowing for future grievances filed on behalf of individual employees disregards the limitations of the grievance. The Agency asserts that the grievance was filed on behalf of the bargaining unit and not individual employees.
B. Union's Opposition.
The Union did not file an opposition.
IV. Analysis and Conclusions
A. The Award Draws Its Essence From the Agreement
The Agency contends that the Arbitrator erred in considering on the merits the issue of interim performance appraisals for the transferred employees because that issue encompasses matters outside the bargaining unit, and is not arbitrable under the parties' collective bargaining agreement (parties' agreement). The Agency does not specify a contractual provision, and only cites to the parties' "negotiated grievance procedure[,]" generally. Exceptions at 2. We construe the Agency's contention as a claim that the Arbitrator's determination on substantive arbitrability fails to draw its essence from the parties' collective bargaining agreement. See, e.g., American Federation of Government Employees, Local 1399 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 54 FLRA 1143, 1151 (1998); American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 53 FLRA 1353, 1355-56 (1998).
As noted, despite the Agency's argument before the Arbitrator that the issue of interim performance appraisals for transferred employees was not grievable to the extent that issue concerned employees' performance before they were part of the bargaining unit, the Arbitrator addressed the merits of that issue. By addressing the merits of the performance appraisal issue, the Arbitrator implicitly found that the grievance was arbitrable. [n2] Moreover, the Agency fails to cite any specific provision in the parties' agreement on which it relies in asserting that issues arising prior to the employees' becoming part of the bargaining unit are not arbitrable under the parties' negotiated grievance procedure.
Thus, the Agency has not demonstrated that the Arbitrator's consideration of the merits of such issues is implausible, irrational, or unconnected to the wording of the agreement. Under these circumstances, there is no basis on which to find that the award fails to draw its essence from the parties' agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). Accordingly, we deny this exception.
B. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See American Federation of Government Employees, National Council of SSA Field Operations Locals, Council 220 and Social Security Administration, 54 FLRA 891, 902 (1998) (AFGE Council 220), citing U.S. Department of Defense, Army and Air Force Exchange Service and American Federa- [ v55 p33 ] tion of Government Employees, (Worldwide Consolidated Bargaining Union), 51 FLRA 1371, 1378 (1996). Nevertheless, "the Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement." AFGE Council 220, 54 FLRA at 902, citing Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518-19 (1986) (AFGE Local 2429). Both the Authority and the Federal courts have also consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. See American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246-47 (1995), citing AFGE Local 2429, 24 FLRA at 519.
We find no merit to the Agency's argument that the Arbitrator fashioned a remedy even though he failed to resolve the issue of whether the performance appraisals were properly done. In this case the parties did not stipulate the issues to be resolved, thus allowing the Arbitrator to formulate the issues in his award. The Arbitrator determined that one of the issues before him was the propriety of performance appraisals for the evaluation of the transferred employees. However, the Arbitrator found that the record evidence was insufficient for him to make a determination on that issue. The Arbitrator concluded that the insufficient evidence was based on the Agency's refusal to provide the Union requested information concerning the performance appraisals which were necessary for the Union to address individual employees' complaints. [n3] As a remedy, the Arbitrator directed the Agency, among other things, to provide the requested information. In our view, the award, including the remedy, is directly responsive to the issues raised at arbitration, as formulated by the Arbitrator. Consequently, the Arbitrator did not exceed his authority by formulating the performance appraisal issue and providing the affected employees a remedy.
We also find no merit to the Agency's argument that the Arbitrator's remedial order allowing for future grievances filed on behalf of individual employees disregards the limitations of the grievance. The record establishes that although the grievance was on behalf of the bargaining unit, it also concerned the ability of the Union to address the concerns of individual employees. In this regard, the Arbitrator found that the Union had alleged in the grievance that the Agency had failed to provide the Union information which was necessary to file grievances on behalf of individual employees. The Arbitrator ordered provision of the information and a review to determine that each employee was treated properly under applicable performance appraisal regulations. The Arbitrator's award regarding the timeliness of future grievances makes meaningful the review of the information and each employee's performance appraisal history. Thus, this remedy was also responsive to the issues as framed by the Arbitrator and was within the limitations of the grievance. Accordingly, we deny this exception.
The Agency's exceptions are denied.
Footnote # 1 for 55 FLRA No. 13
The Agency filed limited exceptions pertaining to the portions of the Arbitration award addressing performance appraisals. However, neither party filed exceptions on the other portions of the grievance, which addressed improper formal discussions and an information request. Consequently, the other portions of the grievance, which were not sustained by the Arbitrator, are not before the Authority for consideration.
Footnote # 2 for 55 FLRA No. 13
We note that the grievance in this case arose after the affected employees had become a part of the bargaining unit on March 18, 1996. The grievance was filed in response to a memorandum circulated by the Agency on April 4, 1996. On April 5, 1996, the Union filed the grievance at issue.
Footnote # 3 for 55 FLRA No. 13
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