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63 FLRA No. 81
OF GOVERNMENT EMPLOYEES
COUNCIL 236 OF GSA LOCALS
GENERAL SERVICES ADMINISTRATION
SAN FRANCISCO, CALIFORNIA
April 15, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Samuel A. Vitaro filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency failed to give the grievant a progress review prior to placing her on a performance improvement plan (PIP) in violation of the parties' agreement. For the reasons set forth below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Agency placed the grievance on a PIP due to her unacceptable performance in four critical elements. The Agency did not give the grievant a progress review prior to placing her on the PIP.
As relevant here, the Union filed a grievance alleging that the Agency failed to provide the grievant with a progress review prior to placing her on the PIP. See Award at 5. The grievance was not resolved and was submitted to arbitration. The parties were unable to stipulate to the issue, and the Arbitrator framed it as "whether the Agency is required to give an employee a progress review prior to placing that employee on a PIP and, if so, what remedy should be awarded?" Id. at 7.
The Arbitrator found that Article 19, §§ 5.B-5.D of the parties' agreement did not indicate "when, or under what circumstances, a progress review must occur." [n1] Id. at 9. Specifically, the Arbitrator found that: § 5.B establishes what a supervisor must do during a progress review and how the review must be documented; § 5.C directs the supervisor to inform an employee whether his or her performance is consistent with his or her last overall annual rating; and § 5.D outlines what a supervisor must do if a progress review results in a minimally acceptable or unacceptable rating. See id. at 9-10. The Arbitrator concluded that, although § 5.D requires the development of a PIP for an employee with an unacceptable (Level 1) rating, it does not state that an employee must receive a progress review prior to being placed on a PIP. See id. at 10.
The Arbitrator also found that § 5.A establishes when a progress review must occur but also does not require a progress review "prior to an employee being placed on a PIP." Id. at 11, 12. According to the Arbitrator, § 5.A requires a progress review at the mid-year review, at a supervisor's discretion, and at an employee's request. See id. at 11. The Arbitrator found that § 5.A does not provide a basis for the Union's grievance because: the validity of the grievant's mid-year progress review was the subject of a separate grievance; a supervisor's discretion to perform a progress review does not confer a right for the employee to receive a progress review; and the evidence did not indicate, nor did the grievant claim, that she had requested a progress review prior to being placed on the PIP. See id.
Based on the foregoing, the Arbitrator concluded that the Union failed to establish that the parties' agreement required the Agency to provide the grievant with a progress review prior to placing her on a PIP. The Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union claims that the Arbitrator misinterpreted Article 19, §§ 5.B-5.D of the parties' agreement by finding that the Agency was not required to give the grievant a progress review prior to placing her on a PIP. See Exceptions at 2-3. The Union also contends that the award is deficient because, under Article 19, § 5.A, an employee must be given a progress review semi-annually, and a supervisor also has discretion to give progress reviews as necessary. See id. at 2, 4.
[ v63 p211 ] The Union further claims that the Arbitrator based his award on two nonfacts: the validity of the grievant's semi-annual progress review was the subject of a separate grievance and the grievant never requested a progress review. [n2] See id. at 3.
B. Agency's Opposition
The Agency argues that Article 19 does not require that a progress review be provided prior to giving an employee an unacceptable performance rating. In support, the Agency cites the Arbitrator's finding that a Level 1 performance rating does not mandate that "a progress review must be done" before an employee is placed on a PIP. See Opposition at 7 (quoting Award at 10).
With respect to the Union's nonfact claims, the Agency alleges that the Arbitrator correctly stated that the Union's grievance concerning the validity of the grievant's semi-annual progress review was before a separate arbitrator. See id. at 6. The Agency also contends that the record does not support the Union's claim that the grievant requested a progress review. See id. at 5. Further, the Agency claims that neither of these facts, even if true, would have changed the outcome of the award. See id. at 5, 6.
IV. Analysis and Conclusion
A. The award does not fail to draw its essence from the parties' 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); AFGE, Council 220, 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 United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). 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.
The Union claims that the Arbitrator misinterpreted the parties' agreement. In this regard, the Union argues that Article 19, § 5 provides that an employee may only be placed on a PIP after receiving a progress review with a Level 1 performance rating, and that employees must receive a semi-annual progress review. Article 19, §§ 5.B-5.D sets forth the procedures a supervisor must follow when placing an employee on a PIP and makes no specific mention of progress reviews. Article 19, § 5.A requires the Agency to give an employee a progress review in three situations, but does not specifically require that an employee be given a progress review before being placed on a PIP. The Arbitrator concluded that no provision of Article 19, § 5 requires the Agency to have given the grievant a progress review prior to placing her on a PIP. See Award at 12. The Union has failed to demonstrate that the Arbitrator's interpretation of Article 19, § 5 manifests a disregard of the agreement or is implausible, irrational, or unfounded. Accordingly, we find that the Union's exception provides no basis for finding that the Arbitrator's award fails to draw its essence from the agreement. Accordingly, we deny the exception. See, e.g., AFGE, Local 2142, 58 FLRA 564, 566 (2003).
B. The award is not based on nonfacts.
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.
The Union alleges that the Arbitrator erroneously found that that the validity of the grievant's semi-annual progress review was the subject of a separate arbitration and that the grievant did not request a progress review. See Exceptions at 3. As set forth above, the Arbitrator correctly found that Article 19, § 5 did not require the Agency to provide the grievant with a progress review prior to placing her on a PIP. Consequently, even if the Arbitrator's findings regarding the validity of the grievant's semi-annual progress review and whether the grievant requested a progress review were clearly erroneous, the Union has failed to establish that the Arbitrator [ v63 p212 ] would have reached a different result, but for these findings. See, e.g., United States, GPO, Wash., D.C., 62 FLRA 419, 427 (2008) (nonfact exception denied where agency failed to demonstrate that arbitrator would have reached a different result had he made different factual findings). Accordingly, we deny the Union's nonfact exceptions.
The Union's exceptions are denied.
Article 19, "Performance Appraisal System[,]" provides, in pertinent part:
Section 5. Progress Reviews
A. Employees will be given a progress review at least semi-annually. Additional reviews will be given as the supervisor deems appropriate or upon the employee's request. Employees working under fixed production standards (e.g., warehouse workers), will be apprised of their productivity standing on a regular basis, but at least quarterly.
B. During the progress reviews, the supervisor will provide an objective review of assignments on which the employee has performed, or had an opportunity to perform since the beginning of the rating period, and a rating concerning the level of performance in each critical element. The supervisor will document the review and provide the employee with a copy.
C. The supervisor will inform the employee during the review whether the employee's performance to date remains consistent with the overall rating received on the last annual rating.
D. 1. If a progress review reveals Level 2 (Minimally Successful) performance, the supervisor will take action to assist the employee in improving his or her performance.
2. If a progress review reveals Level 1 (Unacceptable) performance, the supervisor will develop a written Performance Improvement Plan. Performance Improvement Plans within the bargaining unit will identify in writing the performance criteria, established by the Agency in accordance with OPM guidelines, and Section 7 of the article, to meet Level 3.
Award at 9, 10-11.
Footnote # 1 for 63 FLRA No. 81 - Authority's Decision
Footnote # 2 for 63 FLRA No. 81 - Authority's Decision
The Union also argues that the award is contrary to unspecified "[g]overnment-wide regulations." Exceptions at 2. As the Union has failed to identify with which government-wide regulations the award allegedly conflicts, we reject this claim as a bare assertion. See, e.g., AFGE, Local 2274, 57 FLRA 586, 589 n.6 (2001) (contrary to law exception denied as bare assertion where excepting party failed to point to any specific requirement or provision of law).