34:0757(131)AR - - Labor, Washington, DC and AFGE Local 12 - - 1990 FLRAdec AR - - v34 p757
[ v34 p757 ]
The decision of the Authority follows:
34 FLRA No. 131
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF LABOR
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 9, 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 Charles Feigenbaum filed by the American Federation of Government Employees, Local 12 (the Union) 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 Department of Labor (the Agency) filed an opposition to the exceptions.
The Arbitrator denied the grievance of an employee who claimed that he was entitled to a performance rating of "Highly Effective" rather than "Acceptable" for the 1987 and 1988 rating periods. The Union asserts that the Arbitrator's award is deficient because it permits the use of improper, subjective performance standards. For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is an Unemployment Insurance Program Specialist, GS-106-13. He filed a grievance in which he alleged that his ratings for the years 1987 and 1988 should have been "Highly Effective" rather than "Acceptable." The grievance was submitted to arbitration. The Arbitrator framed the issue as follows: "Was the Grievant properly evaluated for the performance rating periods ending in 1987 and 1988? If not, what shall the remedy be?" Award at 2.
The Arbitrator stated that the grievance was "a specific challenge to 1987 critical element 4 and 1988 critical element 3." Award at 3. He noted that if the grievant had been rated as exceeding the standards on those critical elements, he would have been entitled to an overall rating of "Highly Effective" for each year. Critical element 4 for the 1987 rating period concerned the development, interpretation, and enforcement of standards, regulations and agreements governing state unemployment insurance activities. Critical element 3 for the 1988 rating period concerned the provision of technical assistance and guidance to the regions and to states and the appraisal of state claims and benefits operations to ensure compliance with standards.
The grievant contended that he was never told in what manner it would be possible to exceed the standards set for him. The Arbitrator noted that there was disagreement between the grievant and the supervisor over the standards. The Arbitrator also noted the grievant's statement that the supervisor changed the "job elements and standards to my satisfaction only after I practically had to write them myself." Award at 9. The supervisor testified that he told the grievant that the standards could be exceeded by exerting extra effort to resolve problems and to prevent those problems from arising in the future. The supervisor testified that six other GS-13 employees had elements and standards similar to those of the grievant and that some of them had received ratings of "Highly Effective."
The Union contended that "[t]here are two bases for the challenge: first, the elements are impermiss[i]ble absolute performance standards; second, the Grievant's work was not fairly, reasonably or objectively evaluated during the rating periods." Award at 13. The Union contended that the ratings were defective because the critical elements contain standards "which are absolute and cannot be exceeded." Id. at 14.
The Agency asserted that the grievant was not rated higher than he was because he "failed to show initiative or resourcefulness, and the documents he prepared required detailed direction, guidance, and revisions." Award at 15. The Agency contended that the elements were fair and that the supervisor "went out of his way to establish 1987 and 1988 standards that would meet the concerns expressed by the Grievant." Id. at 16.
The Arbitrator determined that certain of the disputed subelements of the grievant's standards were not as clear as others in showing how the elements could be exceeded. However, he stated that he did not agree "with the Union's contention that they cannot be exceeded." Award at 20. The Arbitrator referred to the supervisor's testimony that "the exercise of initiative and resourcefulness could result in a rating of exceeds." Id., emphasis in original. The Arbitrator disagreed with the Union's contention that such a requirement would be an improper measure of character traits. The Arbitrator also stated that because of the extensive discussions between the grievant and the supervisor, he found "that the Grievant was satisfied with both sets of standards at the times he signed them, and that he believed it was possible to exceed them." Id. at 21.
The Arbitrator credited the supervisor's testimony that the grievant "did the work required and met his standards, but his performance did not rise above that level." Award at 22. The Arbitrator found that the standards were properly applied with respect to critical element 4 in 1987 and critical element 3 in 1988, with the exception that critical elements 4d in 1987 and 3b in 1988, relating to the Unemployment Insurance Federal Share Audit project, should have been rated "Exceeds." Id. at 22-23. However, the Arbitrator concluded that even if the higher rating had been given on those Federal Share Audit subelements, "there is substantial evidence in the record to support the ratings of meets standard given the Grievant on elements 4  and 3 ." Id. at 24, emphasis in original. The Arbitrator, therefore, denied the grievance.
III. First Exception
A. Positions of the Parties
In its first exception, the Union alleges that the Arbitrator exceeded his authority under the parties' collective bargaining agreement by changing the performance standards applied to the grievant. The Union contends that the Arbitrator improperly permitted "the use of subjective standards such as initiative and resourcefulness" while provisions of the agreement "limit the use of subjective criteria to unusual situations." Exceptions at 4-5. The Union also contends that the Arbitrator erred by relying on the grievant's signing of the performance standards as a basis for finding that the grievant was satisfied with the standards and that the grievant believed that it was possible to exceed the standards. The Union states that "[i]mplicit in the Arbitrator's finding is the notion that the Grievant should have somehow challenged his elements and standards when they were issued to him or suffer the peril of being found to have been satisfied and in agreement with them when issued." Id. at 6.
The Agency denies that the Arbitrator or the supervisor applied improper subjective standards. The Agency maintains that the Union is only disagreeing with the Arbitrator's reasoning and conclusions and with his interpretation and application of the collective bargaining agreement.
We conclude that the Union has failed to demonstrate that the Arbitrator exceeded his authority by improperly changing the grievant's performance standards. In performance appraisal cases, an arbitrator is authorized to review the agency's appraisal of the grievant and determine whether the grievant's appraisal was performed in accordance with law, regulation and the parties' collective bargaining agreement. See Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1160-62 (1988) (discussing the authority of arbitrators in resolving grievances over performance ratings).
The Arbitrator in the instant case exercised his authority in compliance with Authority precedent. He examined the performance standards applied to the grievant and determined that the standards as written were not absolute and that they could be exceeded. In reaching this conclusion, the Arbitrator relied on testimony by the grievant's supervisor which described the ways in which the standards could be exceeded and pointed out in what ways the grievant's performance failed to exceed the standards. The Arbitrator did not, as the Union alleges, exceed his authority by changing the grievant's performance standards or by substituting improper subjective performance standards.
Further, contrary to the Union's contention, the Arbitrator did not imply that the grievant should have challenged his performance standards when they were issued to him. The Arbitrator merely noted that the grievant had expressed disagreement with the standards and that the standards were changed in response. See Award at 9. The Arbitrator found that "the grievant was satisfied with both sets of standards at the times he signed them, and . . . believed it was possible to exceed them." Id. at 21. Accordingly, the Union's first exception provides no basis for finding the award deficient.
IV. Second Exception
A. Positions of the Parties
In its second exception, the Union alleges that the Arbitrator's award fails to draw its essence from the agreement because the Arbitrator's finding that "subjective elements and standards are permissible 'where the work permits it' is not only not drawn from the Collective Bargaining Agreement, it contravenes the Agreement." Exceptions at 6. The Union maintains that the parties agreed "to eliminate the use of subjective job standards, such as initiative and resourcefulness, to the maximum extent possible." Id. at 7.
The Agency contends that the Arbitrator properly applied objective performance standards as required by the collective bargaining agreement to find that the grievant's performance did not exceed the standards. The Agency denies that the Arbitrator or the supervisor "stated that 'initiative and resourcefulness' were used as performance standards[.]" Opposition at 6.
We conclude that the Union has not shown that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. In order for an award to be found deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See Pension Benefit Guaranty Corporation and National Treasury Employees Union, Chapter 211, 32 FLRA 141, 145 (1988).
The Union has not demonstrated that the Arbitrator's award fails to draw its essence from the collective bargaining agreement under any of the above tests. The Arbitrator did not apply "initiative and resourcefulness" as performance standards; he only agreed with the testimony of the supervisor that "if the Grievant had exercised initiative and resourcefulness, he could have accomplished work which would have warranted exceeds ratings." Award at 20-21, emphasis in original. That finding constitutes a plausible interpretation of the agreement. The Union's second exception fails to provide a basis for finding the award deficient.
V. Third Exception
A. Positions of the Parties
In its third exception, the Union contends that the Arbitrator's award is contrary to Federal Personnel Manual (FPM) chapter 430, subchapter 2-4(a), which requires that performance standards established under 5 U.S.C. º 4302 be based on "objective criteria" and that they "should be performance-related rather than trait-related." The Union maintains that "[t]here is no finding that the subjective standards of initiative and resourcefulness were documented and measured, or that any attempt was made at all to document and measure the Grievant's performance under these standards." Exceptions at 8.
The Agency denies that the award is contrary to the FPM and denies that the supervisor or the Arbitrator applied subjective standards related to character traits. The Agency maintains that the supervisor and the Arbitrator found only that the grievant had failed to demonstrate work that would qualify for a rating of "Exceeds."
We conclude that the Union has failed to show that the Arbitrator's award is contrary to the FPM.
Performance standards must be based on objective criteria which are reasonable, realistic and attainable. See National Treasury Employees Union, Chapter 229 and Department of Health and Human Services, 32 FLRA 826, 830 (1988), citing Walker v. Department of the Treasury, 28 MSPR 227 (1985). The Union has failed to show that the standards applied in this case are not based on objective criteria or that they do not meet the requirements of the FPM. As noted above with regard to the Union's second exception, the Arbitrator did not apply "initiative and resourcefulness" as performance standards; he indicated only that by the exercise of those traits, the grievant could perform work which would exceed the standards. Because the Union has not shown that the award is contrary to the FPM, the third exception does not provide a basis for finding the award deficient.
VI. Fourth Exception
A. Positions of the Parties
In its fourth exception, the Union alleges that the award is deficient because it is based on a nonfact. The Union does not agree with the Arbitrator's finding that because the grievant signed the 1987 standards, he was satisfied with them. The Union contends that the discussions leading to the grievant's signing the standards concerned only the number of elements, not how the grievant could exceed the standards. The Union also disagrees with the Arbitrator's finding that the grievant was satisfied with the 1988 standards because of the grievant's statement that he "practically wrote the 1988 standards." Exceptions at 9. The Union contends that the grievant meant that statement as "an expression of frustration, not a statement of fact that he did write the standards." Id.
The Union states that "[t]he Arbitrator's conclusion that the use of such subjective standards as initiative and resourcefulness are permissible where the work permits it is based on a nonfact." Exceptions at 10. The Union asserts that there is no evidence to support a finding that the Agency complied with the requirement contained in the FPM and in the collective bargaining agreement to use objective performance standards to the maximum extent.
The Agency denies that the Arbitrator relied on a nonfact by accepting the grievant's statement that he wrote the 1988 standards himself. The Agency points out that none of the contentions raised by the Union in this regard were raised at the hearing and argues that they are not supported by the evidence. The Agency contends that the Union is only disagreeing with the Arbitrator's evaluation of the evidence and testimony. The Agency also disagrees with the Union's exceptions that the Arbitrator improperly relied on the grievant's signing of the standards as a basis for finding that the grievant believed the standards could be exceeded. The Agency contends that the Arbitrator reached a fair and reasonable conclusion and the Union is only disagreeing with the Arbitrator's reasoning and conclusion.
We will find an award deficient because it is based on a nonfact when it is demonstrated that the central fact underlying the award is concededly erroneous and constitutes a gross mistake of fact but for which a different result would have been reached. U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 1568, 33 FLRA 308, 312 (1988). In order for an award to be found deficient on this ground, it must be established that the alleged nonfact involved a fact that was objectively ascertainable, was the central fact underlying the award, was concededly erroneous, and that but for the arbitrator's erroneous finding, the arbitrator would have reached a different result. Id.
The Union has not established that the Arbitrator's award is deficient as based on a nonfact. The Unio