34:0697(120)AR - - NFFE Local 1263 and DOD, Defense Language Institute, Presidio of Monterey - - 1990 FLRAdec AR - - v34 p697
[ v34 p697 ]
The decision of the Authority follows:
34 FLRA No. 120
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE LANGUAGE INSTITUTE
PRESIDIO OF MONTEREY
February 1, 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 Geraldine M. Randall. The grievant filed a grievance disputing her performance appraisal. The Arbitrator found that the Defense Language Institute (the Agency) had properly rated the grievant, and she denied the grievance.
The National Federation of Federal Employees, Local 1263 (the Union) filed exceptions to the award 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 did not file an opposition to the Union's exceptions.
The grievant, a representative of a class of similarly situated grievants, is a training instructor in the German Department at the Agency. In 1987, 18 instructors, including the grievant, were selected and certified as proficiency testers. Proficiency testing is a voluntary activity, offered to all instructors, which serves the function of evaluating graduating students, applicants, and tapes sent from other installations. Before the instructors were selected as proficiency testers, they were informed that they would be required to attend a 2-week workshop on proficiency testing, and periodic recertification workshops to retain their certifications.
The grievant was required to attend a recertification workshop in 1987 in order to continue to be a proficiency tester in 1988. When she was contacted by the department chairperson in August 1987 about attendance at the scheduled workshop, the grievant informed the chairperson that she was unwilling to attend the workshop.
For the appraisal period February 27, 1987, to January 10, 1988, the grievant was rated "exceeds" on job elements 1, 2, and 3 and "met" on job element 4. Her summary rating was "highly successful." If she had been rated "exceeds" on job element 4, her summary rating would have been "exceptional." Job element 4 (Professional activities and contributions) includes the following performance standard: "4.d. Recommends positive, workable solutions to problems and assists in their implementation." The job element also states that to exceed this element, superior performance in 4.d. must be documented.
The grievant filed a grievance challenging her performance rating. In denying the grievance, the Agency stated:
Nonparticipation in voluntary training would not be an appropriate criterion to use in determining whether an individual had met or not met Performance Element 4 as currently written. However, it would be appropriate to include nonparticipation as one factor to be considered in determining whether an individual had exceeded the minimum performance described in that element. . . .
Since proficiency tester training was one of those voluntary activities which would have been considered in justifying an "exceeded" rather than a "met" rating, your nonattendance at this recertification workshop was one of the factors considered in the performance appraisal process. . . .
Arbitrator's Award at 10-11 (quoting denial of the grievance by the Provost; emphasis in original).
The grievance was submitted to arbitration as representative of two other unresolved grievances of similarly situated training instructors. The parties stipulated to the following issue: "Is participation in voluntary training a proper factor to use in determining whether Grievant . . . exceeded her job element concerning professional activities and contributions?" Id. at 2.
III. The Arbitrator's Award
The Arbitrator found that the stipulated issue raised a question of whether "a refusal to participate in voluntary training [can] be used to negatively impact an employee's performance rating, that is, to reduce a rating higher than 'met' to which an employee would otherwise be entitled[.]" Id. at 17.
The Arbitrator determined that the grievant and the other instructors had participated in a deliberate plan to pressure the Agency to change the conditions under which proficiency testing was performed. The Arbitrator stated that their action was "not unlike a strike." Id. at 19. The Arbitrator determined that the Agency properly viewed these actions as a factor which detracted from other superior performance under job element 4. The Arbitrator concluded that the grievant's actions "evince[d] less than superior performance in '[r]ecommend[ing] positive, workable solutions to problems and assist[ing] in their implementation.'" Id. at 20.
The Arbitrator ruled that the grievant's "non-participation in the voluntary recertification workshop on proficiency testing is, in the circumstances of this case, a proper factor to use in determining whether she exceeded her job element concerning professional activities and contributions." Id. at 21.
IV. First Exception
The Union contends that the award is contrary to 5 U.S.C. º 4302 and 5 C.F.R. part 430.(*) The Union argues that the award is deficient because the performance standards "being reflected in the appraisal are not contained in the job description" of teaching instructors and "are not objective." Union's Exceptions at 7. The Union also maintains that because the award is based on the grievant's choice not to be recertified for calendar year 1988, a period outside the grievant's rating period, the award is deficient because the Arbitrator considered performance outside the grievant's rating period.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is contrary to 5 U.S.C. º 4302 or 5 C.F.R. part 430.
5 U.S.C. º 4302 requires agencies to establish performance appraisal systems with job elements and performance standards which will, to the maximum extent feasible, permit accurate evaluation of performance on the basis of objective criteria related to the job in question. 5 C.F.R. º 430.204(d)(1) requires that each appraisal system provide for job elements and performance standards based on the requirements of the employee's position.
In Wilson v. HHS, 770 F.2d 1048, 1052 (Fed. Cir. 1985) (Wilson), the court stated that to be "objective," a performance standard should be "sufficiently precise and specific as to invoke a general consensus as to its meaning and content." Performance standards may allow for the subjective judgment of the employee's supervisor. Federal Personnel Manual Letter (FPM) 430-4 recognizes that a rating official is required to exercise judgment in appraising performance:
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. º 4302(b)(1).
Neither 5 U.S.C. º 4302 nor 5 C.F.R. º 430.204(d)(1) requires that performance standards be "contained in the job description," as alleged by the Union. Union's Exceptions at 7. Furthermore, the Union fails to establish that the performance standard in dispute--"Recommends positive, workable solutions to problems"--is not related to the position of teaching instructor or is not based on the
requirements of that position, as required by law and regulation.
The Union also fails to establish that the standard is not objective. In our view, the standard is sufficiently precise and specific so as to invoke a general consensus as to its meaning. See Wilson. The supervisor's judgment about the grievant's performance one level above the standard is also within the range of objectivity required by law and regulation. See FPM Letter 430-4. The Union has not shown in what manner the grievant's actions were improperly considered by the Arbitrator to "evince less than superior performance in '[r]ecommend[ing] positive, workable solutions to problems and assist[ing] in their implementation." Arbitrator's Award at 20.
Finally, we reject the Union's contention that the Arbitrator considered performance outside the grievant's rating period. The Arbitrator based her award on the grievant's action in August 1987 in refusing, as a part of a group, to participate in the voluntary recertification workshop. This action occurred during the rating period for which the grievant's performance was appraised.
The Union fails to establish that the award is contrary to 5 U.S.C. º 4302 or 5 C.F.R. part 430. Accordingly, the Union's first exception provides no basis for finding the award deficient.
V. Second Exception
The Union contends that the award fails to draw its essence from the parties' collective bargaining agreement. The Union argues that the Arbitrator "committed a gross error by setting aside the requirements of the negotiated agreement, Article 20, Section 6, which states, 'Employees assigned to a new set of duties will be given [an] operable position description with performance standards related to the position.'" Union Exceptions at 2. The Union also argues that the Arbitrator "committed a harmful error by ignoring the negotiated agreement, Article 25, Section 4, 'The employee's performance will be evaluated on a continuing basis.'" Id.
B. Analysis and Conclusions
We are not persuaded that the award fails to draw its essence from the collective bargaining agreement. The Union's contentions constitute nothing more than disagreement with the Arbitrator's: (1) interpretation and application of the collective bargaining agreement; (2) findings of fact; and (3) reasoning and conclusions. These contentions do not establish that the award does not draw its essence from the collective bargaining agreement and provide no basis for finding the award deficient. Compare Department of Housing and Urban Development, Greensboro, North Carolina and American Federation of Government Employees, Local 3409, 33 FLRA 81 (1988) (disagreement with an arbitrator's interpretation and application of the collective bargaining agreement, findings of fact, and reasoning and conclusions provides no basis for finding that an award fails to draw its essence from the collective bargaining agreement) 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 collective bargaining agreement).
VI. Third Exception
The Union contends that the Arbitrator based her award on "non-facts," but for which a different decision would have been rendered. The Union claims that the Arbitrator's statement that the "action was not unlike a strike," constitutes a non-fact because the "analogy of a strike hardly holds water." Union's Exceptions at 3. The Union also claims that the Arbitrator's finding that the grievant and the other instructors participated in a deliberate plan to pressure the Agency by refusing as a group to participate in the recertification workshop constitutes a non-fact because the Arbitrator's finding was capricious and a mistake. The Union further claims that the Arbitrator's det