[ v57 p874 ]
57 FLRA No. 184
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 201
(Union)
and
UNITED STATES DEPARTMENT OF DEFENSE
DEFENSE FINANCE AND ACCOUNTING
SERVICE, ROME, NEW YORK
(Agency)
0-AR-3412
_____
DECISION
June 14, 2002
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, MembersI.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Peter A. Prosper 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 found that the Agency did not improperly terminate the grievant. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Arbitrator found that the grievant was appointed on May 16, 1998, to a position of accounting technician on a Schedule A, Excepted Service, temporary (not to exceed one year) appointment under 5 C.F.R. § 213.3102(u), which is a hiring authority for severely disabled individuals. [n1] The notice of personnel action stated that the grievant's employment services were "limited to 1 year or less and are subject to termination at any time without use of adverse action or reduction-in-force procedures." Award at 3. The grievant signed a form at the time he was hired which stated that his employment was temporary. He was told that "he would be renewed" if his service proved satisfactory. Id. at 6.
The grievant was notified that his appointment was not going to be renewed upon its expiration on May 25, 1999. Thereafter, he filed a grievance.
In the absence of agreement by the parties, the Arbitrator framed the issue before him as follows:
Did the [Agency] improperly terminate the grievant . . .? If so, what shall the remedy be?
Award at 2.
Before the Arbitrator, the Agency argued that the grievance was not arbitrable because it concerned the non-renewal of an employee's temporary appointment. The Union disagreed.
The Arbitrator found that the grievance was arbitrable. In this regard, he found that the Agency "properly hired the grievant as a temporary employee whose tenure was not to exceed one year, but at the same time indicated to the employee that he would be renewed upon completion of satisfactory service." Id. at 6. In so finding, the Arbitrator relied on the terms of the "Notification of Personnel Action" form and the "Conditions of Employment" form, the fact that the Agency followed the Office of Personnel Management's (OPM's) "Guide to Processing Personnel Actions," and the recognition by a Union representative that the grievant "was hired as a temporary employee not to exceed one year with the caveat that if he demonstrated performance at the fully successful level, he could be extended for another year." Id. In sum, the Arbitrator stated:
Given the nature of the appointment, the conditions under which the grievant was hired, and the legal authority underlying that appointment, I find that the [Agency] properly hired the grievant for a one-year period of time. Under that agreement, the [Agency] had the right to not renew the grievant's contract. Although the [Agency] was not required by law to justify its termination of the grievant, it had an obligation to do so because the grievant was given an indication that he would be renewed if his service was satisfactory.
Id. at 7. [n2] [ v57 p875 ]
With respect to the grievant's performance, the Arbitrator found that "[t]he grievant did not provide satisfactory service during his tenure with the [Agency]." Id. In this regard, the Arbitrator found that the grievant "just could not perform the duties required of him, even when a substantial number of tasks were removed from his responsibility area, and when he was given completely different kinds of work to perform." Id. As found by the Arbitrator, even though the grievant's duties "were substantially reduced, he still was unable to perform in a minimally satisfactory manner." Id. at 8. The Arbitrator also concluded that the Agency "did all that it could to accommodate the grievant" by reducing his workload and responsibilities and providing him with certain equipment. Id. In reaching this conclusion, the Arbitrator also dismissed the Union's argument that the Agency should have placed the grievant in a field different from the one for which he had applied. According to the Arbitrator, "[t]here is no evidence that [the grievant] ever applied for or asked for a change in job . . . ." Id.
As his award, the Arbitrator found that the Agency did not improperly terminate the grievant, and he denied the grievance. The Arbitrator also charged the Union a cancellation fee (equivalent to the Arbitrator's 1-day fee) for canceling an earlier hearing date without sufficient notice.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is contrary to law because the Arbitrator's finding that the grievant was given a one-year temporary appointment is "inconsistent with the statutory construction of appointment(s) made pursuant to" 5 C.F.R. § 213.3102(u). Exceptions at 5. According to the Union, the Agency is required pursuant to this provision "to enter into a two-year program which allows handicapped employees['] skills to be assessed for permanent employment -- non-competitively." Id. at 3. In essence, the Union contends that the grievant was entitled to a trial period of employment of 2 years, not 1 year.
The Union also contests the Arbitrator's finding that the Agency provided the grievant with a reasonable accommodation. Citing the Rehabilitation Act and relying on a proposed settlement agreement, the Union asserts that the grievant is a severely handicapped individual in a protected class pursuant to 29 C.F.R. § 1613.702(a) who was entitled to a reasonable accommodation. [n3]
The Union also asserts that the Arbitrator erred in not addressing the Agency's failure to give the grievant his performance appraisal, and in not allowing the Union to introduce new information or to recall an Agency witness.
Finally, the Union contests the portion of the Arbitrator's bill which charged the Union for failing to timely notify the Arbitrator that it was canceling an arbitration hearing. The Union claims that it timely notified the Arbitrator.
B. Agency's Opposition
The Agency asserts that the award is consistent with law because the Arbitrator correctly ruled that the grievant's appointment by the Agency was proper. In this regard, the Agency argues that, consistent with OPM's Guide to Processing Personnel Actions, agencies are permitted to hire severely disabled employees on temporary time limited appointments for one year or less under 5 C.F.R. § 213.3102(u). [n4] The Agency asserts that this is how it hired the grievant in this case.
The Agency also contends that the Union has failed to show that the Arbitrator erred in not addressing the performance appraisal issue. The Agency claims that any asserted failure to provide the grievant with a performance appraisal is immaterial to the issue that was properly framed and resolved by the Arbitrator in the absence of an issue stipulated by the parties. In addition, the Agency asserts that the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing, because the Union has not shown that the Arbitrator's actions prejudiced the Union or affected the fairness of the proceedings as a whole.
Finally, the Agency contends that the Union's challenge to the Arbitrator's bill should be denied. [ v57 p876 ]
IV. Analysis and Conclusions
A. The Award Is Not Contrary To Law
An exception alleging that an award is contrary to law is reviewed by the Authority de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. United States Dep't of the Treasury, United States Customs Serv., Portland, OR, 54 FLRA 764, 770 (1998) (citing NFFE, Local 1437, 53 FLRA 1703, 1710 (1998)). In making that assessment, the Authority defers to the arbitrator's underlying findings of fact. Id.
1. The Arbitrator Did Not Err In Finding That the Grievant Was Properly Hired For A 1-year Period
The Union bases its claim that the grievant was entitled to a two-year probationary period on its interpretation of 5 C.F.R. § 213.3102(u). It asserts, in essence, that this provision requires the Agency to enter into a two-year program to allow handicapped employees' skills to be assessed for permanent employment non-competitively, and that the Agency does not have discretion under the law to alter that two-year condition. We disagree.
The language the Union relies on from § 213.3102(u) provides:
Upon completion of 2 years of satisfactory service under this authority, the employee may qualify for conversion to competitive status under the provisions of Executive Order 12125 and implementing regulations issued by the Office. [n5]
By its terms, § 213.3102(u) provides that upon completion of two years of satisfactory service, the appointee may qualify for conversion to competitive status. Nothing in § 213.3102(u) states that an agency must retain an appointee for the full two years if he or she does not provide satisfactory service during the trial period, or that under such circumstances the appointee could not be removed.
Moreover, as the Agency asserts, the OPM Guide to Processing Personnel Actions provides for the appointment of a severely disabled employee to either a time limited or non-time limited appointment. We agree that the Guide supports the conclusion that OPM has provided for hires under § 213.3102(u) of less than two years.
Furthermore, we note the Arbitrator's findings that the Agency told the grievant that his one-year appointment would be renewed if his service was satisfactory, and that during that first year the grievant was unable to perform satisfactorily. We defer to those factual findings.
Finally, the Agency's argument that it had the right to use a one-year appointment is bolstered by 5 C.F.R. § 213.104(a)(1), which notes that, as relevant here, temporary appointments for Schedule A positions "are made for a specified period not to exceed 1 year" unless specified in the particular Schedule A exception. No such exception applies here.
Accordingly, we find that § 213.3102(u) allows for less than a two-year appointment, and that the Agency's hiring of the grievant for a one-year appointment with the understanding that the appointment would be renewed upon satisfactory performance, as found by the Arbitrator, was within the Agency's discretion under the regulation. As such, the award is consistent with § 213.3102(u).
2. The Arbitrator Did Not Err In Finding that the Agency Provided the Grievant Reasonable Accommodation
In finding that the Agency properly terminated the grievant, the Arbitrator also rejected the Union's argument that the Agency had failed to make a reasonable accommodation for the grievant's handicap. The Union has not demonstrated that the Arbitrator erred in making this finding.
The Arbitrator found that the Agency "did all that it could to accommodate the grievant" and that the Agency "did not fail to reasonabl[y] accommodate" the grievant. Award at 8. In reaching that conclusion, the Arbitrator relied on his factual findings that the grievant repeatedly was unable to perform duties in the position to which he was appointed, that the Agency changed and reduced his duties in recognition of that fact and that the grievant did not request a reassignment to a different position. The Arbitrator also found that the grievant's termination at the end of the year of work was a [ v57 p877 ] direct result of his inability to perform his duties satisfactorily. As discussed above, the Authority defers to an arbitrator's findings of fact. Accordingly, to the extent that the Union's contention that the Arbitrator erred in finding that the Agency had reasonably accommodated the grievant is based on a disagreement with the Arbitrator's factual findings, we reject the Union's contention.
Moreover, insofar as the Union is claiming that the Arbitrator violated law or regulation in making his finding, we reject this claim as well. Citing the Rehabilitation Act, the Union claims that the grievant is a severely handicapped individual in a protected class pursuant to 29 C.F.R. § 1613.702(a) who qualifies for reasonable accommodation under the Act. However, even assuming that the cited regulation applies to the grievant, the Union has not established that the award, finding that the Agency reasonably accommodated the grievant, is inconsistent with the regulation. See United States Dep't of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, 42 FLRA 1186, 1192 (1991) (Fort Bragg) (dealing with known physical limitations under 29 C.F.R. § 1613.704). In addition, to the extent that the Union is relying on a settlement proposal, such reliance does not demonstrate that the award is deficient. The settlement proposal, which is unsigned and contains no admission of wrongdoing by the Agency, provides no basis for finding that the Arbitrator erred in determining that the Agency had reasonably accommodated the grievant. See AFGE, Local 1843, 51 FLRA 444, 449 n.5 (1995) (arbitrator's reliance on settlement order was misplaced).
Accordingly, we conclude that the Union has not established that the Arbitrator erred in finding that the Agency reasonably accommodated the grievant.
B. The Arbitrator Did Not Deny the Union A Fair Hearing
The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995).
1. The Union's Claim Relating to New Information and the Agency Witness
We construe the Union's claim that the Arbitrator failed to consider new information or to recall an Agency witness as a contention that the Arbitrator failed to provide a fair hearing. The Union claims that it had been made aware of information previously unknown and not available, and that it should have been allowed to recall an Agency witness for impeachment purposes. However, the mere claim that the evidence it was not allowed to introduce was new and that it would have an impact on the arbitration is insufficient to establish that the Arbitrator failed to conduct a fair hearing. See United States Dep't of Health and Human Services, Social Security Administration, Boston Region, 48 FLRA 943, 946 (1993) (nothing to indicate that evidence would have been pertinent or material to the outcome of the case).
For the same reason, we reject the Union's related claim that the failure to consider certain information violated the grievant's Constitutional right to due process, which we also construe as a contention that the Arbitrator failed to provide a fair hearing. The Union has not identified with specificity the contents and relevance of the referenced information or how its preclusion affected the grievant's rights. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, CO, 48 FLRA 589, 597 (1993).
In view of the foregoing, we conclude that the Union has not established that the award is deficient on this basis.
2. The Union's Claim Relating to the Grievant's Performance Appraisal
The Union alleged that the Arbitrator erred in not addressing the Agency's failure to give the grievant his performance appraisal, which we construe as an additional contention that the Arbitrator failed to provide a fair hearing. As noted, an award will be found deficient because an arbitrator failed to provide a fair hearing when, as pertinent here, it is established that an arbitrator's refusal to hear or consider pertinent and material evidence prejudiced a party so as to affect the fairness of the proceeding as a whole.
The Arbitrator found that the grievant repeatedly was unable to perform duties in the position to which he was appointed, the Agency many times changed and reduced his duties in recognition of that fact, and that the grievant's termination was a direct result of these facts. The Union has not established how the fact that the Arbitrator did not address the Agency's failure to give the grievant a performance evaluation prejudiced the grievant so as to affect the fairness of the proceeding as a whole. [ v57 p878 ]
C. The Arbitrator Did Not Exceed His Authority
The Union's claim that the Arbitrator erred in not addressing the Agency's failure to give the grievant a performance appraisal may also be construed as an allegation that the Arbitrator exceeded his authority. An award will be found deficient on this basis when an arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his authority, or awards relief to persons who are not encompassed within the grievance. See United States Dep't of Defense, Army and Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). In the absence of a stipulation of the issues by the parties, we accord substantial deference to the arbitrator's framing of the issue. United States Dep't of the Army, Corps of Engineers, Memphis District, Memphis, TN, 52 FLRA 920, 924 (1997).
The issue framed by the Arbitrator was whether the Agency improperly terminated the grievant. The parties did not stipulate that the Arbitrator was required to resolve whether the Agency erred in failing to give the grievant his performance appraisal. The Union has not demonstrated that the Arbitrator was required to have addressed that issue or that by failing to do so, the Arbitrator failed to resolve an issue that was submitted to arbitration. Accordingly, the Union has not demonstrated that the Arbitrator exceeded his authority.
D. The Portion of the Award Imposing a Cancellation Fee on the Union Is Not Deficient
The Union asserts that it should not have been charged a cancellation fee by the Arbitrator because it timely notified the Arbitrator of the need to reschedule a particular hearing date. However, the Union makes no claim -- and does not otherwise establish -- that the Arbitrator's imposition of the cancellation fee was contrary to law, rule, or regulation, or that the award fails to draw its essence from the parties' agreement. See United States Dep't of the Air Force, Okla. City Air Logistics Ctr., Tinker AFB, 35 FLRA 700, 704-05 (1990) (union failed to establish that arbitrator's imposition on union of cancellation fees for prior arbitration hearing was contrary to law or the parties' agreement or was otherwise deficient).
Similarly, to the extent the Union's claim that it timely notified the Arbitrator could be viewed as alleging that the imposition of the fee is based on a nonfact, the exception must also be rejected. To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colorado, 48 FLRA 589, 593 (1993). The Union has not established that the Arbitrator erred in stating that the cancellation notice was received within 5 days of the scheduled hearing.
Accordingly, this exception does not provide a basis for finding the imposition of a cancellation fee deficient.
V. Decision
The Union's exceptions are denied.
Footnote # 1 for 57 FLRA No. 184
5 C.F.R. § 213.3102(u) provides:
Positions when filled by severely physically handicapped persons who: (1) Under a temporary appointment have demonstrated their ability to perform the duties satisfactorily; or (2) have been certified by counselors of State vocational rehabilitation agencies or the Veterans Administration as likely to succeed in the performance of the duties. Upon completion of 2 years of satisfactory service under this authority, the employee may qualify for conversion to competitive status under the provisions of Executive Order 12125 and implementing regulations issued by the Office.
Footnote # 2 for 57 FLRA No. 184
No exception was taken to the Arbitrator's finding that the grievance was arbitrable.
Footnote # 3 for 57 FLRA No. 184
The Rehabilitation Act, 29 U.S.C. § 701 et seq., is implemented by regulations in 29 C.F.R. § 1613.704.
Footnote # 4 for 57 FLRA No. 184
In support, the Agency quotes a portion of the Guide that refers to a "`person . . . being employed under a Schedule A, B, C authority that is not covered by the rules below and the appointment is temporary . . . .'" Opposition at 6, quoting OPM Guide Update 25, December 12, 1997, page 11-11, rule 3 (emphasis added by Agency). The Agency asserts that this provision indicates that OPM has provided for hires under § 213.3102(u) of less than two years, since the rule would be unnecessary if employers were not permitted to hire severely disabled employees on temporary time-limited appointments for less than two years under § 213.3102(u).
Footnote # 5 for 57 FLRA No. 184
OPM issued interpretive guidance pursuant to Executive Order 12125 in FPM Letter 306-15 (April 16, 1979). It advised agencies that:
Conversion under Executive Order 12125 is not mandatory for retention in the position; however, there should be substantial justification for not recommending for conversion an employee who meets the minimum service requirement and who has demonstrated successful job performance.