34:0348(66)AR - GEORGE C. MARSHALL SPACE FLIGHT CENTER NASA, HUNTSVILLE, ALABAMA and MARSHALL ENGINEERS AND SCIENTISTS ASSOCIATION INTERNATIONAL FEDERATION OF PROFESSIONAL -- 1990 FLRAdec AR



[ v34 p348 ]
34:0348(66)AR
The decision of the Authority follows:


 34 FLRA NO. 66


            GEORGE C. MARSHALL SPACE FLIGHT CENTER
         NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
                      HUNTSVILLE, ALABAMA

                              and

         MARSHALL ENGINEERS AND SCIENTISTS ASSOCIATION
           INTERNATIONAL FEDERATION OF PROFESSIONAL
                    AND TECHNICAL ENGINEERS

                           0-AR-1647

			    DECISION

     			January 18, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Lloyd L. Byars. The grievant filed a
grievance disputing his performance appraisal. The Arbitrator
found that the George C. Marshall Space Flight Center (the
Activity) had properly rated the grievant and denied the
grievance.

     The Marshall Engineers and Scientists Association (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 Activity
filed an opposition to the Union's exceptions.

     For the reasons stated below, we conclude that the Union has
failed to establish that the Arbitrator's award is deficient, and
we will deny the Union's exceptions. 

II. Background and Arbitrator's Award

     The grievant received an overall annual performance rating
of "highly successful" for the appraisal period ending September
30,  1987. The grievant's performance was rated as meeting
("meets") the performance requirements for job element 1
(maintain scanning electron microscope and energy dispersive
spectroscopy laboratory) and job element 4 (maintain
communication). The grievant filed a grievance claiming that his
performance should have been rated as exceeding ("exceeds") the
performance requirements for these two elements, as his
performance had been rated in the two previous appraisal
periods.

     The Arbitrator noted that the Activity characterized the
grievant's performance under job element 1 as that which is
expected. The Arbitrator found that the evidence did not
establish that the grievant's performance under job element 1 for
the period in dispute clearly exceeded the established
performance requirements.

     The Arbitrator rejected the Union's contention that because
the grievant's performance under job element 4 did not change
significantly from previous periods when he was rated as
"exceeds," the grievant's performance warranted a rating of
"exceeds." The Arbitrator stated that the primary consideration
in appraising an employee is a comparison of the employee's
performance with the performance requirements. In the
Arbitrator's view, a comparison of the grievant's performance
with the performance requirements under element 4 did not
establish that the grievant clearly exceeded the requirements. In
response to the grievant's question of "why a similar performance
was 'good enough' for an 'exceeds' rating" in the previous
period, the Arbitrator explained that the performance
requirements of the element allow for "interpretation and
subjective judgment" by the appraising supervisor. Arbitrator's
Award at 15-16.

     The Arbitrator rejected the Union's contention that the
grievant's lower rating for the disputed period than in the two
previous periods was in reprisal and retaliation for the
grievant's union activities. The Arbitrator concluded that there
was no evidence to establish that the grievant's performance
ratings were motivated by consideration of his union
activities.

     The Arbitrator ruled that the Activity "properly rated the
Grievant's October 1, 1986 through September 30,  1987
performance as 'highly successful' in accordance with 
established performance elements and standards and consistent
with law, regulation and contract." Id. at 17.

III. Positions of the Parties

     A. The Union

     The Union contends that the award is deficient because it:
(1) is "contrary to statute, regulations, and the Union's
Contract," (2) is "contrary to the evidence placed before the
Arbitrator," and (3) "does not draw from the Contract." Union's
Exceptions at 2.

     The Union contends that the award as it pertains to the
grievant's rating under job element 1 is contrary to: (1) 5
U.S.C. 4302; (2) the Activity's regulations; (3) Article 27 of
the parties' collective bargaining agreement and (4) the evidence
presented to the Arbitrator. The Union maintains that the
grievant's performance under job element 1 must have exceeded the
performance requirements job at the beginning of the appraisal
period because his performance exceeded the same requirements for
the previous appraisal period. The Union notes that the
Arbitrator found that in certain respects, the grievant improved
his performance during the appraisal period. The Union argues
that the grievant's rating was not supported by the evidence
presented to the Arbitrator. The Union asserts that under 5
U.S.C. 4302, performance standards cannot be subject to various
interpretations and subjective evaluation. Therefore, the Union
claims that the Arbitrator's finding that the grievant did not
exceed the performance requirements for job element 1 is
deficient.

     The Union contends that the award as it pertains to the
grievant's rating under job element 4 is contrary to law,
regulations, and the collective bargaining agreement. The Union
maintains that in Eibel v. Department of the Navy 857 F.2d 1439
(Fed. Cir. 1988) (Eibel), the court held that performance
requirements that are subject to various interpretations and
subjective evaluation are contrary to law. The Union argues that,
based on Eibel, the award is contrary to law because the
Arbitrator sustained the grievant's rating by allowing the
grievant's supervisor "room for interpretation and subjective
judgment." Id. at 13 (quoting the Arbitrator's Award at 16). The
Union also argues that by failing to find that the grievant
exceeded the performance requirements, the award is contrary to
the Activity's performance appraisal regulations. 

     The Union also contends that "(t)he record offers strong
support for finding that the Grievant's lowered performance
rating was part of a management reprisal." Id. at 14. The Union
argues that when reprisal motivates a rating, the rating is
contrary to the collective bargaining agreement.

     B. The Activity

     The Activity contends that the Union fails to establish that
the award is deficient on any of the grounds set forth in section
7122(a) of the Statute.

     The Activity argues that the Union has erroneously
interpreted Eibel. The Activity states that although the court in
Eibel held that 5 U.S.C. 4302 requires objective criteria for the
critical elements of positions, the court did not prohibit all
subjective evaluations. The Activity argues that both the U.S.
Court of Appeals for the Federal Circuit and the Merit Systems
Protection Board (MSPB) permit performance requirements that are
not strictly objective. Therefore, the Activity asserts that the
Union fails to establish that the Arbitrator's denial of the
grievance is contrary to law.

     The Activity argues that the Union's contention that the
award is contrary to the evidence constitutes nothing more than
disagreement with the Arbitrator's evaluation of the evidence and
his findings of fact and provides no basis for finding the award
deficient.

IV. Discussion

     The Statute sets forth the grounds on which an arbitration
award will be found deficient. Under section 7122(a), an award
will be found deficient: (1) because it is contrary to any law,
rule, or regulation; or (2) on other grounds similar to those
applied by Federal courts in private sector labor relations
cases. For the reasons stated below, we conclude that the Union
fails to establish that the award is deficient on any ground set
forth in the Statute.

     The Union contends that on the basis of 5 U.S.C. 4302 and
Eibel v. Department of the Navy, the Arbitrator's findings on the
grievant's performance under job elements 1 and 4 are contrary to
law and regulation because the grievant's performance was
subjectively evaluated. We are not persuaded that the award is
deficient. We find that the Union's reliance on Eibel and 5
U.S.C. 4302 is misplaced. 

     Performance standards must permit the accurate evaluation of
job performance on the basis of objective criteria "to the
maximum extent feasible." 5 U.S.C. 4302. In Eibel, the U.S. Court
of Appeals for the Federal Circuit reversed an employee's removal
under 5 U.S.C. 4303 for unacceptable performance because the
performance standards under which the employee was appraised did
not: (1) provide an accurate objective measurement of the
employee's level of achievement, and (2) inform the employee of
what is acceptable performance. 857 F.2d at 1444.

     The Union does not contend that the performance standards
for job elements 1 and 4 did not provide for accurate measurement
of the grievant's work performance or that the grievant was not
informed of what was acceptable performance under those elements.
Instead, the Union contends that the grievant's ratings of having
met rather than exceeded the performance requirements were too
subjective because (1) the grievant should have been rated at the
same levels as he had been rated during the previous two rating
periods, and (2) the "'appraisal form . . . allows the supervisor
room for interpretation and subjective judgment.'" Union's
Exceptions at 13 (quoting Arbitrator's Award at 16).

     Because the Union does not contend that the grievant's
performance standards for job elements 1 and 4 were improper, the
court's decision in Eibel does not provide a basis for concluding
that the Arbitrator erred in failing to conclude that the
standards did not satisfy the requirements of 5 U.S.C. 4302. We
note, however, that contrary to the contentions of the Union, the
U.S. Court of Appeals for the Federal Circuit and the MSPB do not
require that performance requirements be strictly objective and
do not prohibit all subjective evaluations. See Wilson v.
Department of Health and Human Services, 770 F.2d 1048, 1052
(Fed. Cir. 1985) (the statutory terms "accurate evaluation,"
"objective criteria," and "to the maximum extent feasible," taken
together, require performance standards to be sufficiently
precise and specific so as to invoke a general consensus as to
their meaning and content); Stubblefield v. Department of
Commerce, 28 MSPR 572, 576 (1985) (a position was not susceptible
to strictly objective ratings and the performance standards were
not impermissibly subjective).

     We reject the Union's exception that the award is deficient
because the Arbitrator upheld performance ratings which were
impermissibly subjective. The Agency's performance appraisal
system has three rating levels for each job element:
exceeds, meets, and fails to meet. Union's Exceptions, Attachment
2. Written performance standards are provided for the "meets"
level only. Id. Because written standards are provided for the
"meets" level only, a rating official must exercise judgment to
determine whether the performance has exceeded or, conversely,
failed to meet the requirements set forth in the written
standard.

     The requirement that rating officials exercise judgment in
determining appraisal ratings does not render the Activity's
appraisal system impermissibly subjective. In fact, Federal
Personnel Manual Letter 430-4 recognizes that a rating official
is required to exercise judgment:

     If an agency's appraisal system has three performance levels
and a written standard for only one level of performance for each
element, . . . the rating official may make a judgment about an
employee's performance one level above, one level below, or at
the level where the standard is written without additional
criteria. The judgments made by a rating official about an
employee's performance one level above or one level below the
written standard are considered to be within a reasonable range
of accuracy and objectivity and, therefore, are consistent with
the requirements of 5 U.S.C. 4302(b) (1).

     The Union has not demonstrated that the manner in which the
grievant was appraised, or the requirement that the grievant's
supervisor exercise judgment in appraising the grievant,
conflicts with law or regulation. Accordingly, we conclude that
the Union fails to establish that the award, finding that the
grievant was properly rated, is contrary to law or regulation.

     Further, the Union's contentions that the award is contrary
to the parties' collective bargaining agreement and does not draw
its essence from that agreement fail to establish that the award
is deficient on any of the grounds set forth in section 7122(a)
of the Statute. The Union's contentions constitute nothing more
than disagreement with the Arbitrator's: (1) findings of fact;
(2) evaluation of the evidence; and (3) reasoning and
conclusions. These contentions provide no basis for finding the
award deficient. Compare American Federation of Government
Employees, Local 1568 and United States Department of Housing and
Urban Development (HUD), 33 FLRA  687 (1988) (disagreement with
an arbitrator's findings of fact, evaluation of the evidence, and
reasoning and conclusions provides no basis for finding an award
deficient under the Statute) with American Federation of
Government Employees, Local 547 and Tampa Veterans Administration
Hospital, 19 FLRA  725 (1985) (award fails to draw its essence
from the parties, collective bargaining agreement).

     The Union's contention that the award is contrary to the
evidence presented fails to establish that the award is deficient
on any of the grounds set forth in section 7122(a) of the
Statute. The Union is attempting to relitigate the merits of the
grievance. The Union's contention constitutes nothing more than
disagreement with the Arbitrator's: (1) findings of fact; (2)
evaluation of the evidence and testimony; and (3) reasoning and
conclusions. The Union's contention provides no basis for finding
the award deficient. See, for example, Social Security
Administration, Data Operations Center, Albuquerque, New Mexico
and American Federation of Government Employees, Local 3512, 33
FLRA  134 (1988) (a contention which attempts to relitigate
before the Authority the merits of the grievance and which
constitutes nothing more than disagreement with the arbitrator's
findings of fact, evaluation of the evidence and testimony, and
reasoning and conclusions provides no basis for finding an award
deficient on