35:1180(133)AR - - HHS, SSA, Chicago, IL and AFGE Local 1346 - - 1990 FLRAdec AR - - v35 p1180



[ v35 p1180 ]
35:1180(133)AR
The decision of the Authority follows:


35 FLRA No. 133

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

CHICAGO, ILLINOIS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1346

(Union)

0-AR-1861

DECISION

May 30, 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 Viola M. Kanatz. The Arbitrator denied the grievance concerning the grievant's performance rating on Generic Job Task (GJT) 40.

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.

For the following reasons, we find that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a Claims Representative. He grieved the rating he received on one element (GJT 40) of his performance appraisal for the period from October 1, 1987 to September 30, 1988. The grievant was evaluated on five generic job tasks and received a summary appraisal of Fully Satisfactory. On GJT 40, a critical element, the grievant received a rating of 2. In the previous year, the grievant had received a rating of 3 for GJT 40. Had the grievant received a rating of 3 for GJT 40 on the appraisal at issue, the grievant would have received a summary appraisal of Excellent and would have qualified for an award in excess of $700.00. Award at 2.

The parties exhausted the grievance procedure without resolving the dispute and the matter was submitted to arbitration. The Arbitrator framed the primary issue as whether the performance appraisal issued to the grievant for the period ending September 30, 1988 was proper under the pertinent provisions of the parties' National Agreement.

Before the Arbitrator, the Union argued that the grievant's progress reviews were late and because the supervisor did not tell the grievant that his performance had deteriorated, the grievant had been deprived of the opportunity to correct those areas of performance requiring improvement. The Union noted that the grievant had been required to use a substantial amount of official time to carry out his responsibilities as a Union steward. The Union asserted that although the grievant had not met the office clearance goal for June 30, 1988, the "goals" were changed to "targets" or were "just guidelines and not to be used for appraisal purposes." Id. at 2. The Union also argued that, based on a decision by the Merit Systems Protection Board (MSPB), the nationwide performance standards for the Agency's Claims Representatives are impermissibly vague and that "but for the Agency's use of invalid standards[,]" the grievant's rating for GJT 40 would not have been lowered. Id. at 3.

The Agency argued that on his April 1988 performance review, the grievant was given a Fully Satisfactory rating on GJT 40 and that this rating let him know that he was not performing up to his previous rating of Excellent.

The Arbitrator found that "the Union has not established that the grievant deserves a higher rating, or that he was unaware of the deterioration evidenced by his review and rating in April." Id. at 3-4. The Arbitrator noted that a January 1990 Memorandum of Understanding between the parties requires employees to receive advance notice, not necessarily written, of the danger of a lower appraisal rating. Based on the grievant's rating of Fully Satisfactory on his April 1988 performance review, the Arbitrator concluded that the April 1988 rating constituted such advance notice. In addition, the Arbitrator found that "the grievant had been apprised of the targets for completion in a memo sent to all Title 16 Claims Representatives on December 13, 1987" and that the late progress review "did not impede the grievant's ability to check up on his own completion of cases by certain target dates" because he had 50 cases left in August 1988 and should have been aware of that problem. Id. at 4.

The Arbitrator noted the Union's argument that "targets" were different from "goals" in that "targets" were only voluntary guidelines, but found that "the memo from the Area/State Director uses these terms interchangeably in establishing the completion targets for FY 88." Id. The Arbitrator also noted that the decision of an MSPB Administrative Judge cited by the Union stated that the national performance standard for Claims Representatives' GJT 40 was "vague and subjective to an impermissible degree." Id. However, the Arbitrator found that the MSPB Administrative Judge's decision allowed an agency to "give content to an employee's performance standards by informing him of specific work requirements through other methods," including determining "what it requires from its Claims Representatives with regard to the quantity of cases to be processed, the speed of processing, and the level of accuracy." Id., quoting Hertlein v. Department of Health and Human Services, No. SE04328910269 (July 14, 1989), MSPB AJ Decision (Seattle Regional Office) (Hertlein) at 6, 7.

Having found that the December 13, 1987 memo apprised the grievant of completion targets and the April 1988 performance review notified the grievant of the danger of a lower appraisal rating, the Arbitrator concluded that "[t]his has been done in the grievant's case." Award at 4. Consequently, the Arbitrator denied the grievance concerning the grievant's September 30, 1988 rating on GJT 40.

III. Exceptions

The Union contends that the Arbitrator's award is contrary to 5 U.S.C. § 4302(b)(1) and (2) and the parties' collective bargaining agreement.

The Union argues that the Hertlein case determined that the Claims Representative performance standards are vague. The Union acknowledges that, under current case law, an agency "may give content to narrative performance standards by issuing supplemental numeric standards, or using a performance improvement plan," but asserts that "neither were used in this case." Exceptions at 1. The Union also challenges the Arbitrator's finding that the grievant's April 1988 rating on GJT 40 gave the grievant advance notice of his deteriorating performance. The Union states that "the Agency representative stipulated the April 1988 progress review did not contain the critical words 'fully successful'" and that, therefore, the Arbitrator's conclusion that the grievant would have recognized this as a warning was "nothing more than conjecture[.]" Id. The Union notes that the April 1988 comments were less harsh than the comments made on the grievant's performance on GJT 40 in 1987, when the grievant received a rating of Excellent on that task.

The Union also argues that 5 U.S.C. § 4302(b)(2) requires that performance standards be given to unit employees before the appraisal period starts. The Union criticizes the Arbitrator's use of the "wrong document" to support the finding that notice of supplemental numeric standards or a performance improvement plan had been given in this case. Id.

The Union argues that the Arbitrator improperly relied on the Area Director's July 28, 1988 memo as constituting notice required by law or the parties' agreement because: (1) there is "nothing in the record to demonstrate the grievant ever received or was aware of the Area Director's memo to managers"; (2) such a memo would be exempt from disclosure to the Union or unit personnel under section 7114(b)(4)(C); (3) treating the Area Director's memo addressed to managers as giving content to the grievant's narrative standards in effect postulates "that Agency managers have the same performance standards as the grievant"; (4) targets or goals are not unit supplemental numeric standards and cannot, by statute, be applied to unit employees; and (5) the Agency requires all unit employees to date and sign receipt of performance standards at the start of each appraisal period and that because the Area Director's memo to managers was not signed by the grievant, "it cannot be assumed that the grievant ever saw it." Id. at 2, 3.

IV. Analysis and Conclusion

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, 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 Federal courts in private sector labor relations cases.

The Union disputes the Arbitrator's finding that the Agency gave content to the national performance standards for Claims Representatives and contends that the award is contrary to 5 U.S.C. § 4302(b)(1). We reject the Union's assertion for the following reasons.

An arbitrator may properly examine whether an employee's performance standards comply with applicable law and regulation. See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987). As to whether the standards in this case are consistent with 5 U.S.C. § 4302(b)(1), we note that in addition to the language used in the performance standards, an agency may give content to an employee's performance standards by informing the employee of specific work requirements through other methods, including: written instructions regarding the employee's duties, evidence that an employee was informed specifically of deficiencies in his or her work and of methods by which the employee could improve his or her performance, and agency responses to an employee's questions concerning his or her performance. Baker v. Defense Logistics Agency, 25 MSPR 614, 617 (1985), affirmed 782 F.2d 1579 (Fed. Cir. 1986).

The Arbitrator accepted the statement in Hertlein that the GJT 40 standard for Claims Representatives was "vague and subjective to an impermissible degree."(*) Award at 4. However, the Arbitrator found that Hertlein permitted the Agency to give content to the Claims Representative performance standards by determining requirements for "the quantity of cases to be processed, the speed of processing, and the level of accuracy" and that "[t]his has been done in the grievant's case." Id. In this regard, the Arbitrator noted that: (1) "the grievant had been apprised of the targets for completion in a memo sent to all Title 16 Claims Representatives on December 13, 1987"; and (2) the grievant's April 1988 rating of Fully Satisfactory let the grievant "know at the time that he was not performing up to his rating of the previous year[.]" Id.

As noted above, the record indicates that the Arbitrator relied on the April 1988 progress review and a December 13, 1987 memo to find that content had been given to the grievant's performance standard. The Arbitrator referred to a memo from the Area/State Director to address the Union's argument that "targets" were different from "goals" in that "targets" were only voluntary guidelines. In this regard, the Arbitrator noted that "the memo from the Area/State Director uses these terms interchangeably in establishing the completion targets for FY 88." Id. at 4. The Union's argument that the Arbitrator improperly relied on the Area Director's July 28, 1988 memo to support the finding that content had been given to the performance standard misconstrues the Arbitrator's finding and constitutes nothing more than disagreement with the Arbitrator's findings of fact, conclusions, and evaluation of the evidence. It provides no basis for finding the award deficient. See U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 34 FLRA 640 (1990) (Scott Air Force Base).

The Union also argues that the Arbitrator improperly found that the grievant's April 1988 rating on GJT 40 gave the grievant advance notice of his deteriorating performance. This argument constitutes nothing more than disagreement with the Arbitrator's finding of fact and evaluation of the evidence and provides no basis for finding the award deficient under the Statute. See Scott Air Force Base. Because the Arbitrator found that the Agency had remedied the vagueness of GJT 40 by giving content to that performance standard as permitted by law and because the Union's arguments as to that finding are nothing more than disagreement with the Arbitrator's evaluation of the evidence, we conclude that the Union has not shown that the award is contrary to 5 U.S.C. § 4302(b)(1).

We also reject the Union's contention that the Area Director's memo did not constitute notice of performance standards required by 5 U.S.C. § 4302(b)(2) or the parties' agreement. The record does not indicate, and the Union does not argue, that the grievant did not receive the written performance standard for GJT 40 at the beginning of the relevant appraisal period. To the extent that the Union argues that the Agency did not properly communicate the content added to the performance standard for GJT 40, we reject that argument.

Pursuant to 5 U.S.C. § 4302(b)(2), an agency must, at the beginning of each appraisal period, communicate to each employee the performance standards and critical elements of the employee's position. Communication of those standards may occur in counseling sessions, in written instructions, or in any manner calculated to apprise the employee of the requirements against which he or she is to be measured. Papritz v. Department of Justice, 31 MSPR 495, 497 (1986). An agency may modify the quality and quantity of performance required of its employees, as long as it makes the employee aware of the modifications. Mouser v. Department of Health and Human Services, 32 MSPR 543, 548 (1987).

The Arbitrator found that a December 13, 1987 memo sent to Claims Representatives, not the Area Director's memo, apprised the grievant of the targets for completion. Because the Arbitrator found that the grievant had been apprised of such targets, we conclude that the content added to the standard was communicated to the grievant as required by law. The Union's argument that the Area Director's memo did not constitute the notice required by 5 U.S.C. § 4302 is, in effect, a disagreement with the Arbitrator's finding that the grievant was apprised of the content given to the performance standard in this case. Such an argument is merely disagreement with the Arbitrator's finding of fact and evaluation of the evidence and provides no basis for finding the award deficient under the Statute. See Scott Air Force Base. Consequently, we conclude that the Union has not shown that the Arbitrator's award is inconsistent with 5 U.S.C. § 4302(b)(2).

Further, the Union's argument that notice was not provided pursuant to the parties' agreement constitutes disagreement wi