[ v57 p648 ]
57 FLRA No. 125
U.S. ENVIRONMENTAL PROTECTION AGENCY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3911
December 14, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert B. Hoffman filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator, in relevant part, upheld a grievance concerning the timeliness of the grievant's performance appraisal. After finding that any remedies personal to the grievant were moot, the Arbitrator ordered the Agency to post a notice in certain of its offices for 60 days and to cease and desist from engaging in certain behavior. For the reasons that follow, we find the award deficient.
II. Background and Arbitrator's Award
The Agency employs the grievant as a GS-12 enforcement/ compliance coordinator in its San Juan, Puerto Rico, office, which is referred to as the Caribbean Environmental Protection Division ("CEPD"). The CEPD is a part of the Agency's Region II office based in New York City.
Article 34, Section 6 of the parties' collective bargaining agreement (agreement) provides for an appraisal period of January 1 to December 31. [n1] Article 34, Section [ v57 p649 ] 28 of the agreement directs supervisors who, at any time during the appraisal year, identify an employee's significant performance-related problem, to meet with the poorly-performing employee to develop a Performance Assistance Plan ("PAP"). A PAP is designed to give an employee 45 days to improve his or her performance. Under Article 34, Section 16 of the agreement, supervisors are to provide annual performance appraisals to employees within one month of the close of the appraisal period on December 31, with certain exceptions. Article 34, Sections 24 and 25 of the agreement require supervisors to meet personally with employees to discuss and deliver documentation of the employee's annual rating ("appraisal interview").
In December 1998, the grievant and his supervisor met to develop the employee's performance plan for 1999. On February 2, 2000, the supervisor and the grievant met for the grievant's appraisal interview for 1999. During this meeting, the supervisor identified performance problems and, in accordance with guidance received from the Agency's human resources office, informed the grievant that he was preparing a PAP for the grievant. The grievant did not receive his rating for 1999 at that time. On February 16, the grievant received the PAP, which set forth work assignments for the next 45 days.
Subsequently, the Union filed a grievance, on behalf of the employee, alleging an array of violations of the agreement based on the supervisor's treatment of the grievant as described above. [n2] As a remedy for the violations alleged, the Union requested that the Agency rate the grievant as "successful" for 1999, clear the grievant of any past negative performance, have a Union representative present when the grievant and the supervisor meet to discuss the grievant's 2000 performance plan, cancel the PAP and allow the grievant the opportunity to transfer to a position where he can have the opportunity to perform.
After the supervisor denied the grievance at the first step, the Union appealed the grievance, requesting the same remedy that was requested at the first step of the grievance procedure. Thereafter, the supervisor wrote the grievant a memorandum, informing him that his performance had improved to the point where performance assistance was no longer necessary. He also informed the grievant that he was rating him as "successful" for 1999.
The Agency subsequently denied the grievance at the second step. After the parties could not resolve the matter, they submitted it to arbitration. Prior to arbitration, the parties stipulated that the Arbitrator would consider the following issue:
Did management violate the contract by deferring (the grievant's) performance rating and issuing a PAP after the rating period had expired?
Exceptions at 5.
At the hearing, and in its post-hearing brief, the Union argued that the Agency's deferral of the grievant's rating until the close of the PAP, and the delivery of that PAP, in April 2000 violated various portions of the agreement. In terms of a remedy, the Union, in its brief, abandoned many of the remedies sought in the grievance, as it recognized that they were now moot. In this regard, the Union withdrew its request that the grievant receive a "successful" rating for 1999, that the grievant have a union representative present at the meeting between the grievant and his supervisor over the grievant's 2000 performance plan and a cancellation of the PAP. It left intact its requests that the grievant be cleared of any negative past performance and that the Agency allow the grievant to transfer to a position where he can have an opportunity to perform. The Union also requested, for the first time, in its brief, that the Arbitrator order the Agency to post a notice at all Agency facilities nationwide concerning employee rights under Article 34.
In its brief to the Arbitrator, dated the same day as the Union's brief, the Agency argued that the relevant portions of Article 34 authorized its placement of the grievant on the PAP following the close of the appraisal year and the Agency's delaying of the grievant's appraisal until the end of the PAP. The Agency did not address the issue of remedy in its brief.
The Arbitrator ruled that the Agency violated the agreement by deferring the grievant's appraisal and by issuing a PAP to the employee after the rating period had ended, inviolation of Article 34, Sections 6, 16 and 28. [n3] After noting that most of the remedies personal to the grievant were now moot, the Arbitrator ordered the Agency to post a notice at its facilities in New York City and the CEPD. In so ruling, he stated, "without it, this award would be of little value as a resource for applying [ v57 p650 ] Section 28." Award at 22. The Arbitrator's posting outlined the rights and responsibilities of employees and supervisors under Article 34, as requested by the Union. The posting includes a cease and desist order to the Agency, directing it to stop engaging in certain behavior related to the rating of employees and the placement of employees onto PAPs. The Arbitrator, however, refused to impose any of the other remedies proposed by the Union, all of which dealt only with the grievant's working conditions.
III. Positions of the Parties
A. Agency's Exceptions
The Agency first maintains that the Arbitrator exceeded his authority and failed to conduct a fair hearing by violating a contractual limitation on his authority. In this regard, the Agency claims that Article 43, Section 7 and Article 44, Section 3 of the parties' agreement prohibited the Arbitrator from considering the Union's request for a posting, which the Union requested for the first time after the hearing. [n4]
The Agency also maintains that the Arbitrator failed to conduct a fair hearing by denying the Agency an opportunity to present countervailing arguments as to the inappropriateness of the Union's proposed posting. The Agency, citing Gen'l Serv. Admin., Region 9, Los Angeles, Ca., 56 FLRA 978 (2000)(GSA), maintains that the Authority will find an award deficient where a party is not given an opportunity to address an issue decided by the Arbitrator. The Agency notes that its brief was dated the same date as the Union's brief, wherein the Union first requested a posting.
Next, the Agency asserts that the Arbitrator exceeded his authority by issuing an order affecting employees and positions outside the scope of the grievance. The Agency argues that the grievance was processed as an employee grievance under the contract and that the stipulated issue involved only the named grievant. Consequently, the Agency maintains that the Arbitrator exceeded his authority by not limiting his remedy to the grievant.
Finally, the Agency asserts that the Arbitrator exceeded his authority by resolving an issue not submitted to him. In this connection, the Agency notes that the issue submitted to the Arbitrator did not include an issue of remedy. The Agency asserts that the submitted issue required only a "yes" or "no" answer and that the Arbitrator exceeded his authority when he fashioned a remedy for the violation.
B. Union's Opposition [n5]
The Union first argues that the Agency mischaracterizes two portions of the agreement in its Exceptions. First, the Union claims that the agreement does not contain an explicit requirement that the second step grievance indicate the personal relief sought, contrary to the Agency's assertion in its brief. Additionally, the Union argues that the agreement does not completely prohibit the raising of issues after the second step of the grievance procedure. In this regard, the Union maintains Article 44, Section 5 of the agreement permits additional information and remedies to be introduced after the second step. [n6]
The Union next argues that the restriction on the raising of new issues and charges after the last step of the grievance procedure contained in Article 44, Section [ v57 p651 ] 3 of the agreement does not preclude the Union from requesting a new remedy after the second step of the grievance procedure. The Union, relying on the definitions contained in Webster's Third New International Dictionary of the English Language (Unabridged) (1971), argues that the terms "issues" and "charges" do not encompass the remedy requested. Therefore, the Union, which also cites the definition of "remedy", maintains that the Arbitrator did not fail to hold a fair hearing by granting a remedy different than the one requested during the grievance procedure. Moreover, the Union maintains that nothing in the agreement precluded the Arbitrator from granting a remedy different from the one requested at the first and second stage of the grievance procedure.
The Union next distinguishes GSA, on the ground that it did not mandate that parties must have an opportunity to present countervailing arguments as to any or all possible remedies. In the Union's view, that case mandates only that a party must have an opportunity to present arguments as to new issues raised by the opposing party for the first time in a post-hearing brief.
The Union next asserts that the Arbitrator did not exceed his authority by imposing a remedy. In this regard, the Union maintains that the Arbitrator properly resolved all issues submitted to him, as well as the issues presented in the last step of the grievance procedure.
The Union also claims that the Arbitrator did not exceed his authority by ordering a posting and issuing a cease and desist order applicable to other bargaining unit employees. In this connection, the Union claims that the grievance was not only about the Agency's treatment of the grievant. Instead, the Union claims that the grievance was about the proper implementation and interpretation of Article 34 and that this particular grievance was the vehicle used by the parties to obtain that interpretation. Moreover, the Union, citing NTEU, NTEU Chapter 33, 44 FLRA 252 (1992) (NTEU), asserts that the Authority has, in the past, upheld awards that affect employees other than the named grievants.
IV. Analysis and Conclusions
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). Furthermore, an arbitrator exceeds his authority in connection with a remedy where the arbitrator "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." United States Dep't of the Air Force, Air Force Logistics Ctr., Tinker Air Force Base, Okla., 42 FLRA, 680, 685 (1991). Applying this standard, the Authority has consistently held that if a grievance is limited to a particular grievant, then the remedy must be similarly limited. See id. at 686; United States Dep't of the Air Force, Okla. City Air Logistics Ctr., Tinker Air Force Base, Okla., 45 FLRA 1234, 1240-41 (1992).
The Authority has previously found that an arbitrator exceeded his authority by issuing an order determining the contractual rights of a group of unit employees when the issue submitted to him concerned the actions of the agency towards a single employee. In NLRB, 27 FLRA 435 (1987) (NLRB), the parties submitted to an arbitrator the issue of whether the agency had violated the contractual rights of one bargaining unit employee. After finding that that employee's rights were violated, the arbitrator issued an order defining the contractual rights of all bargaining unit employees. The Authority found that the arbitrator had exceeded his authority by issuing that order as his authority was limited to determining whether the agency had violated the rights of one bargaining unit employee.
Similarly, the parties here submitted to the Arbitrator the issue of whether the Agency had violated the agreement in its actions towards one employee. In his award, the Arbitrator here, like the arbitrator in NLRB, defined the contractual rights of additional bargaining unit employees who were not a part of the issue submitted to him. This award, therefore, goes beyond the scope of the stipulated issue by defining the rights of employees who were not a part of the issue submitted to the Arbitrator. By so doing, the Arbitrator exceeded his authority. [n7]
Despite the plain language of the submission, the Union claims that the grievance was not only about the [ v57 p652 ] grievant. Instead, the Union maintains that the case concerned the proper interpretation and implementation of Article 34. The parties, however, submitted only the issue of the Agency's treatment of the grievant to the Arbitrator. Accordingly, he was empowered only to remedy the violations of the agreement as they impacted the grievant. See id.
The Union, citing NTEU, also claims that the Authority has previously upheld awards that affect employees other than named grievant. In NTEU, the Authority upheld an arbitrator's order that the agency distribute an arbitration award, which concerned the agency's treatment of a singular employee, to a large number of employees because the distribution was "designed to correct the harm suffered by the grievant" as a result of misleading statements by agency officials about the grievant in that case. NTEU, 44 FLRA at 276. The Union maintains that the Arbitrator here was merely attempting to dispel misleading information being dispensed by the Agency's human resources office. However, unlike the award in NTEU, the award in this case does not attempt to correct the harm suffered by the grievant. Instead, it focuses on defining the rights of all of the bargaining unit employees of the New York office and the CEPD, an issue which the parties did not submit to the Arbitrator.
Having found the award deficient on the grounds discussed above, we find it unnecessary to address the Agency's other exceptions.
The Arbitrator exceeded his authority by ordering a posting and issuing a cease and desist order. Therefore, the award is deficient and we set it aside.
Article 34 of the agreement contains the following language:
Section 6. APPRAISAL PERIOD. The annual appraisal period begins on January 1 and ends on December 31.
. . . .
Section 16. TIMING OF THE APPRAISAL. Performance appraisals (ratings of record) are scheduled to be done annually within one month of the close of the appraisal period which will be January. Under special circumstances, appraisals may deviate from that schedule:
a. If the employee has not completed the minimum period of performance by the end of the performance cycle, then
the rating of record is given at the end of the minimum period
b. Whenever the employee has a change of supervisor . . . .
c. Whenever the employee concludes a detail of 90 days or more to another position or a temporary promotion of 90 days or more . . . .
. . . .
Section 24. DOCUMENTING THE RATING. Official documentation of the rating of record consists of the completed Performance Plan, which shows the rating of each assigned element, and the completed Appraisal Cover Sheet. . .that includes the rating of record ("successful" or "unacceptable"), signatures any performance highlights, supervisor's comments, and employee's comments. . . .
Section 25. COMMUNICATING THE RATING. Upon approval of the rating of record, the supervisor meets with the employee to conduct a formal appraisal interview. During the appraisal interview, he/she communicates to the employee: a. how each performance element was rated; b. [t]he rating of record; c. [i]f appropriate, areas that may need to be changed in the next year's performance plan; d. [t]he supervisor and the employee will hold the appraisal interview in private.
. . . .
Section 28. PERFORMANCE ASSISTANCE. Continuous, informal feedback between the supervisor and the
employee is essential to ensure an atmosphere that maintains successful performance. However, if at any time during
the appraisal year, the supervisor identifies a significant performance-related problem with an employee, he or she
will meet with the employee in an informal meeting to work collaboratively to develop a plan to correct the problem.
. . .
a. The plan will afford the employee an opportunity of at least 45 days to resolve the identified performance-related problem. During this period, the employee will be deemed to be performing at a successful level for purposes of any performance-related personnel actions.
Footnote # 1 for 57 FLRA No. 125
Footnote # 2 for 57 FLRA No. 125
Footnote # 3 for 57 FLRA No. 125
The Arbitrator also ruled on several allegations contained in the grievance that the parties did not present to the Arbitrator for his consideration. Since the Agency has not excepted to this action, the Arbitrator's consideration of those issues is not before the Authority.
Footnote # 4 for 57 FLRA No. 125
state specifically that he/she is presenting a grievance; the personal relief sought; and the name, organizational unit and location of the aggrieved, a statement of the items, regulations or agreement alleged to have been violated, citing specific paragraphs or articles, the corrective actions desired, designation by name of the Union representative or statement of self- representation.
Article 43, Section 7 of the agreement, in pertinent part, provides that the Step 2 grievance "will contain the information submitted in Step 1 plus the disposition at Step 1."
Article 44, Section 3 of the agreement provides:
Issues and charges raised before the arbitrator shall only be those raised at the last stage of the applicable grievance procedure. The arbitrator shall have no authority to alter in any way the terms and conditions of this Agreement, any supplemental agreement or any other condition of employment not properly before him/her.
Footnote # 5 for 57 FLRA No. 125
As a preliminary matter, the Union requests that the Authority, in accordance with 5 C.F.R. § 2429.5, not consider certain documents submitted by the Agency because those documents were not entered into evidence before the Arbitrator. In light of our disposition of the case, we have not found it necessary to consider or rely upon them. Therefore, the Union's request is moot and we need not address it.
Footnote # 6 for 57 FLRA No. 125
No later than five (5) work days prior to the arbitration, the parties will make available all evidence and proposed witnesses then within its knowledge to the other party. On the last work day prior to the arbitration, the parties will meet to exchange all evidence and proposed witnesses which they intend to enter into the proceeding. If evidence or information becomes available to a party prior to the start of the proceeding which has not been made available to the other party and it is intended to enter that evidence or information in the arbitration, the other party will be provided the evidence or information immediately.
Footnote # 7 for 57 FLRA No. 125
The Authority's decision in Air Force Space Div., Los Angeles Air Force Station, Cal., 24 FLRA 516 (1986), does not dictate a different result. In that case, the Authority found that an arbitrator did not exceed his authority when he ordered the agency to comply with the parties' agreement, even though the grievance concerned only one employee. In contrast to the stipulated issue involved in this case, and the cases cited above, the arbitrator in Air Force Space Division framed the issue himself and did not limit his authority to determining the rights of the grievant.