32:0826(123)AR - - NTEU Chapter 229 and HHS - - 1988 FLRAdec AR - - v32 p826
[ v32 p826 ]
The decision of the Authority follows:
32 FLRA No. 123
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 229
DEPARTMENT OF HEALTH AND
Case No. 0-AR-1501
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Roger P. Kaplan. The Arbitrator found that the Agency properly evaluated the performance of the grievant, a GS-7 secretary, in a critical element and did not violate the parties' collective bargaining agreement in its annual performance appraisal of the employee.
The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the exceptions.
We conclude that the Union has not established that the Arbitrator's award is contrary to law, regulation, or the parties' collective bargaining agreement. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The issue before the Arbitrator, as stipulated by the parties, was whether the Agency properly evaluated the grievant's performance in critical element no. 1 (typing) in its performance appraisal in 1986.
Critical element no. 1 is described as follows: "Types on word processors and proofreads legal briefs, regulations, reports and other material in established format and packages same in order to properly submit documents in a timely manner from rough drafts or dictaphone." Award at 4. There are five levels of performance on this critical element ranging from level 0 to level 4.
Level 2 (a rating of "fully met") provides, in part, that typed material is to meet the performance standards between 80-90 percent of the time, and that no more than 1 page in every 12 of final material is to be returned to the typist for "repreparation." Level 3 (a rating of "exceeds") is a higher standard of achievement than level 2 and provides that performance standards must be met between 90-95 percent of the time. Additionally, no more than 1 page per 18 of final material is to be returned for "repreparation."
There are also five levels of performance which comprise an employee's overall performance appraisal. The overall appraisal is a summary of an employee's performance on the individual elements. The five levels range from unsatisfactory to outstanding.
The grievant in this case occupies the position of GS-7 secretary. For the performance period ending December 31, 1983, the grievant received a rating of level 2 for critical element no. 1, and an overall performance rating of excellent. For the performance period ending December 31, 1984, and again for the period ending December 31, 1985, the grievant received a rating of level 3 for critical element no. 1, and an overall rating of excellent.
For the performance period ending December 31, 1986, the grievant was given a rating of level 2 for critical element no. 1 and an overall rating of fully successful. On March 19, 1987, the employee grieved various aspects of her performance rating. Several changes were made, but the rating for critical element no. 1 as well as the overall rating remained the same.
Previously, in June 1986, the employee filed a grievance regarding her right to have a union representative present at a meeting with management officials. The employee subsequently was given a letter in which management agreed that a union representative should have been provided to the employee.
The Union argued before the Arbitrator that the Agency violated the parties' agreement when it failed to give the grievant a rating of level 3 for critical element no. 1. The Union requested that the Arbitrator apply the Agency's performance standards properly and grant the grievant the level 3 rating. The Union also requested that the Arbitrator order the Agency to cease and desist from its illegal discrimination against the grievant in taking action in reprisal for the filing of the June 1986 grievance.
The Arbitrator found that under the terms of the parties' agreement, the burden of proof was on the employee to demonstrate that she met the requirements of the level 3 rating. The Arbitrator then found that the evidence indicated that the employee committed typing errors that were far in excess of the standard for level 3 and that the employee failed to prove otherwise. Award at 9-10.
The Arbitrator also rejected the Union's argument that the standard for typing is unattainable. Id. at 10. The Arbitrator noted that while performance at level 3 and at level 4, as well, might be difficult, performance at such levels was not unattainable. In any event, the "overwhelming evidence" suggested that the employee's performance was not even close to a level 3 or 4 rating for her typing. Id.
Finally, the Arbitrator found no support in the record to establish that the rating received was in reprisal for the grievance that had been filed in June 1986. Therefore, there was no agreement violation as to this matter. Id.
III. Union's Exceptions
The Union argues that the award is contrary to law, rule, and regulations governing performance standards under 5 U.S.C. º 4302 in that it validated a performance standard that is absolute and unattainable.
The Union cites to various decisions of the Merit Systems Protection Board (MSPB) to support its view. The Union notes that the MSPB has interpreted 5 U.S.C. º 4302(b)(1) to require that performance standards be reasonable, realistic and attainable and that this requirement has been incorporated into the parties' agreement. Walker v. Department of the Treasury, 28 MSPR 227 (1985) (Walker). The Union argues that the standard for level 3 violates the requirements set forth in the agreement. By way of example, the Union notes that the standard would allow no more than a single typographical error per 10 pages of "draft" material and no more than a single typographical error per 18 pages of "final" material. Exception at 6. Given the large volume of typing, the Union argues that the standard is clearly unattainable and unrealistic. Id.
The Union also argues that the Arbitrator's finding that the standard is not absolute is inconsistent with MSPB precedent. Citing to Callaway v. Department of the Army, 23 MSPR 592 (1984) (Callaway), the Union argues that except in limited instances, such as death, injury, breach of security, or great monetary loss, an agency must promulgate non-absolute standards that can be exceeded. Here, the Union argues, supervisor Jaye, the grievant's immediate supervisor, applied the typing standard in an absolute manner when he applied the standard on a document by document basis rather than on an aggregate basis. Exception at 7. The Union points to Jaye's testimony as to how an employee could attain a level 3 or 4 rating when typing a short document and to Jaye's ultimate statement that "a one page document basically would get a satisfactory if it was done appropriately." Id.
IV. Agency's Opposition
In its opposition, the Agency argues that the performance standard for critical element no. 1 complied with all legal, regulatory and contractual requirements. More specifically, the Agency argues that regulations promulgated by the Office of Personnel Management, set forth in 5 C.F.R. º 430.204(e) require that performance standards be written at the "fully successful" level. Standards need not be written at other levels, although ratings may be assigned at other levels. Since the Agency was not obligated to establish written performance standards at levels above fully satisfactory, the Agency argues that it cannot be found to have violated any statutory or regulatory requirements concerning the establishment of level 3 for critical element no. 1.
The Agency also argues that the standard established for performance at level 3 is not an absolute standard. Moreover, the Agency maintains that the Union's reliance on Callaway is misplaced since the MSPB in Callaway did not find an absolute standard to be unlawful per se and because the standard at issue in that case, unlike here, would have permitted the removal of an employee for a single violation of the standard. As to the Union's assertion that performance at level 3 was unreasonable or unattainable, the Agency argues that the Union misstated and took out of context supervisor Jaye's statements as to his interpretation of the standard. In fact, other employees had attained and exceeded the standard for performance at level 3.
Finally, the Agency noted that the burden of proof was on the employee to demonstrate that her performance merited a rating at level 3 and that the Union failed to establish that such was the case.
V. Analysis and Conclusions
We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by the Federal courts in private sector labor relations cases.
We agree with the Union that an arbitrator may properly examine whether an employee's performance standards comply with applicable law and regulation. Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987). We also agree that performance standards must be based on objective criteria that are reasonable, realistic and attainable. Walker, 28 MSPR at 229. See also Blain v. Veterans Administration, 36 MSPR 322 (1988).
In this case, the Arbitrator rejected the Union's arguments that the standard of performance at level 3 was unreasonable, unrealistic and unattainable. While the Arbitrator noted that performance at level 3 might be difficult, he did not find that achievement at the level was impossible. Moreover, the Arbitrator noted that part of the grievant's responsibilities as a typist was to produce error-free draft material. Thus, the standard of performance contained in level 3 was found by the Arbitrator not to be unreasonable, unrealistic or unattainable. The Union's exception that the Arbitrator erred in so finding constitutes mere disagreement with the A