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 ]
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.