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55 FLRA No. 172
U.S. DEPARTMENT OF AGRICULTURE
FARM SERVICE AGENCY
KANSAS CITY, MISSOURI
NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 264
October 29, 1999
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 William O. Eisler 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 filed an opposition to the Agency's exceptions.
The Arbitrator sustained the grievance, determining that the Agency violated the parties' collective bargaining agreement ("agreement") by rating the grievant "fully satisfactory" for one of her performance elements, instead of "exceeds fully satisfactory." [n1] Consequently, the Arbitrator directed the Agency to replace the grievant's rating on that element with "exceeds fully satisfactory." For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
A. Facts Giving Rise to this Grievance
The grievant is a Management Analyst with the Agency. The dispute in this case concerns the rating the grievant received for Performance Element No. 3 ("Element No. 3"), on her annual performance appraisal for the period October 1, 1995 to September 30, 1996. As relevant here, Element No. 3 lists one of a Management Analyst's responsibilities as "prepares, reviews and revises handbooks and other directives and procedures." [n2] The Agency can choose ratings of "Exceeds" fully successful, "Fully Successful," or "Does Not Meet" the performance standard. [n3] Previously, for her annual performance appraisal for the period of October 1, 1994 to September 30, 1995, the grievant received a rating of "exceeds fully successful" for Element No. 3. Award at 8-9, 14.
In relevant part, the grievance alleged that the Agency violated Article 27 of the parties' agreement by lowering the grievant's performance rating from "`Exceeds fully successful_ in October, 1995, to `Meets fully successful' in October, 1996, without justification, explanation or counselling [sic]." Id. at 9. In terms of a remedy, the grievance requested that the arbitrator "[r]aise the rating . . . to `Exceeds fully successful,' thereby raising the overall rating on the October, 1996, performance appraisal to `Outstanding.' If applicable, compensatory damages and attorneys fees to be paid by Employer." Id.
B. Arbitrator's Award
At the outset, the Arbitrator determined that the grievance was arbitrable. The Arbitrator then set forth the issue as follows:
Was the Grievant properly evaluated [for the period from October 1, 1995 to September 30, 1996] in Element #3, "Prepares, reviews and revises handbooks and other directives and procedures?" If not, what is the remedy?
Award at 6 (brackets in original).
First, the Arbitrator found that, at her mid-term review in May, 1996, the grievant asked her supervisor what she could do to improve her performance, and that her supervisor did not advise her that any improvement was needed or that her job performance was deteriorating. The Arbitrator also found that, during her appraisal period, the grievant's supervisor "chang[ed] the relative importance of the handbook updating from that which it occupied in the past, an item of low significance, to its new position as an item of importance." Id. at 15. [ v55 p1061 ]
Second, the Arbitrator found that, during her appraisal period, the grievant's supervisor made handwritten notations on his personal copy of Element No. 3, and that these notations reflected the upgrade in significance of handbook updating. The Arbitrator found that the grievant did not receive a copy of these notations until after her annual performance appraisal.
Upon reviewing the evidence, the Arbitrator determined that the Agency's actions violated Section C(5) and Section C(6) of Article 27 of the parties' agreement. [n4] Specifically, the Arbitrator held that the Agency violated Section C(5) by failing to "`discuss standards or examples of performance at the exceeds fully successful level_ upon request." Award at 16, quoting Article 27, Section C(5) of the agreement (internal quotation marks omitted). On this point, the Arbitrator found that the Agency was obligated to notify the grievant, in response to her inquiry whether she could improve her performance, that she could receive a lower rating in Element No. 3 if she did not comply with the Agency's new expectations regarding handbook updating. The Arbitrator also held that, by failing to provide the grievant with a copy of her supervisor's handwritten notations, the Agency violated the requirement of Section C(6) that it reissue employee performance standards and elements on an annual basis.
In sum, the Arbitrator found that the application of the elements and standards of the grievant's job had changed and that "she was not given fair warning or notice of those changes or of what she needed to do to maintain her work at an `exceeds fully satisfactory' level." Id. at 16-17. In this regard, the Arbitrator ruled that "[b]ut for these changes in her job duties, of which she was not notified, [g]rievant was entitled to be rated in [E]lement #3 at an exceeds fully satisfactory level" in Element #3. Id. at 17. Accordingly, the Arbitrator sustained the grievance and ordered the Agency to replace the grievant's performance rating with "exceeds fully satisfactory." [n5] Id. The Arbitrator retained jurisdiction in order to resolve any questions that may arise pertaining to the Union's request for attorney's fees.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award is contrary to the negotiated agreement because the Arbitrator failed to apply the standard of proof prescribed by Article 27(E)(1)(b) of the agreement. Exceptions at 1. [n6] As authority, the Agency cites U.S. Department of Veterans Affairs, Medical Center, Providence, Rhode Island and Laborers' International Union of North America, Rhode Island Laborers' District Council, Local Union 1056, 49 FLRA 110, 113 (1994) (VAMC Providence).
In support for its argument, the Agency notes that "[t]he arbitrator relied upon an alleged failure of grievant's supervisor to notify grievant of changes in her job duties as the basis for his award." Exceptions at 1. The Agency asserts that, "even if th[is] information were accurate," "[it] would still be inadequate support for a rating of greater than fully successful." Id. at 2. Consequently, the Agency claims that the grievant did not meet the burden of proving that the rating was improper.
In addition, the Agency claims that performance Element No. 3 was the same for both appraisal periods addressed in this case. In support, the Agency refers to the fact that the Agency's "Performance Plan, Progress Review and Appraisal Worksheet" had not changed from 1995 to 1996. On this point, the Agency argues that "because there was not a change from one year to another, there was no reason for the supervisor to notify the grievant of a change in performance [E]lement #3." Id. The Agency concludes that "the arbitrator's stated basis for his award was erroneous[.]" Id.
In sum, the Agency requests that the Authority find that the award is "deficient as contrary to law, rule, regulation, or as failing to draw its essence from the agreement." Id. [ v55 p1062 ]
B. Union's Opposition
The Union claims that the Arbitrator did not improperly place the burden of proof on the Agency.
The Union also argues that the award does not fail to draw its essence from the agreement. Instead, the Union contends that the exceptions should be dismissed because the Agency is merely disagreeing with the Arbitrator's interpretation and application of the agreement provisions that he found had been violated. As authority, the Union cites United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573 (1990) (DOL). As to the Agency's argument that the Arbitrator erred in finding that the grievant's performance elements changed from one rating period to the next, the Union asserts the Arbitrator's findings concerned a change in the supervisor's expectations relating to the element and not a change to the element itself.
IV. Analysis and Conclusions
A. The Award Does Not Fail to Draw Its Essence From the Agreement
The Agency argues that the arbitrator failed to apply the "standard of proof" prescribed by Article 27(E)(1)(b) of parties' agreement. Exceptions at 1. When a party claims that an arbitrator has failed to apply a contractual standard of proof, we determine whether the award draws its essence from the agreement. See, e.g., VAMC Providence, 49 FLRA at 113 (an arbitrator's failure to apply the standard of proof prescribed by a collective bargaining agreement will constitute a basis for finding the award deficient as failing to draw its essence from the agreement).
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See DOL, 34 FLRA at 575. The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
Here, in finding in favor of the grievant, the Arbitrator stated that he had "carefully considered all of the evidence and testimony presented by the parties at the hearing." Award at 14. Based on this evidence, he found that the grievant was entitled under the contract to be advised of any changes in the application of her performance standards, Award at 15, and that "but for" changes of which she was not notified, the grievant would have been entitled to a higher rating. Id. at 17. Thus, he affirmatively found that the rating was improper - the showing the Union was required to make. Moreover, the award does not contain any language suggesting that the Arbitrator sustained the grievance because the Agency failed to prove that the rating was proper, or that the Arbitrator otherwise failed to apply the proper standard of proof in rendering the award. Accordingly, the Agency has not shown that the Arbitrator's award is irrational, implausible, unfounded, or that it evidences a manifest disregard of the collective bargaining agreement. We deny the exception.
B. The Award Is Not Based on Nonfacts
To establish that an award is based on nonfacts, the appealing party must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. 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 (1993). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Further, an appealing party may not challenge the arbitrator's interpretation and application of a collective bargaining agreement as a nonfact. See National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210 (1996); and National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 92 (1995).
The Agency argues that Element No. 3 was the same for both appraisal periods, and that, because "there was not a change from one year to another," there was no reason for the supervisor to notify the grievant of a change. Exceptions at 2. The Agency concludes that "the arbitrator's stated basis for his award was errone- [ v55 p1063 ] ous[.]" Id. We construe the Agency's argument that the Arbitrator erroneously evaluated the evidence as a claim that the award was based on nonfacts. See, e.g., National Federation of Federal Employees, Local 186 and U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Education Programs, Flandreau Indian School, Flandreau, South Dakota, 55 FLRA 59, 60 (1999).
At arbitration, the parties contested the factual issue of whether the Agency changed the level of importance of handbook updating under Element No. 3. The parties did not dispute whether the performance element itself had changed, and the Arbitrator did not base his award on a change in the performance element itself. Instead, the Arbitrator found that what was central to this case was whether the Agency had changed the level of importance that was ascribed to a particular task within an existing element. The Agency has not demonstrated that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the Arbitrator. Accordingly, we deny the exception.
C. The Award Is Not Contrary to Law, Rule or Regulation
The Agency fails to specify any law, rule, or regulation in support of its contention that the award is deficient in this regard. An unsupported allegation that the award is contrary to law, rule, or regulation provides no basis for finding an award deficient. See, e.g., American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, 46 FLRA 1347, 1351 (1993). Accordingly, we deny the exception.
The Agency's exceptions are denied.
Footnote # 1 for 55 FLRA No. 172
Footnote # 2 for 55 FLRA No. 172
Footnote # 3 for 55 FLRA No. 172
Footnote # 4 for 55 FLRA No. 172
In pertinent part, Article 27, § C (5) states: "[u]pon request of the employee, the Employer agrees to meet with the employee to discuss standards or examples of performance at the `exceeds fully successful' level." In pertinent part, Article 27, § C(6) states: "after initial issuance of elements and standards, the elements and standards will be reissued annually, normally within thirty (30) days from the beginning of the appraisal period." See Article 27: PERFORMANCE APPRAISAL SYSTEM, attached to Union's Opposition as Attachment #3.
Footnote # 5 for 55 FLRA No. 172
Although the Arbitrator ordered a rating of "exceeds fully satisfactory," we find that the effect of the award is to direct the Agency to replace the grievant's rating with "exceeds fully successful." See supra note 1.
Footnote # 6 for 55 FLRA No. 172
1. For an employee grieving their performance appraisal, the following will apply as to burden of proof:
. . . .
b. Where the employee challenges a rating on the basis that they should have been rated higher than "fully successful," the burden of proof shall be on the employee to establish that the rating was improper.
See Article 27: PERFORMANCE APPRAISAL SYSTEM, attached to Union's Opposition as Attachment #3.