35:1200(136)AR - - Army, Army Reserve Personnel, St. Louis, MO and AFGE Local 900 - - 1990 FLRAdec AR - - v35 p1200
[ v35 p1200 ]
The decision of the Authority follows:
35 FLRA No. 136
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY RESERVE PERSONNEL
ST. LOUIS, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
May 31, 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 Kirby J. Smith, Jr. The Arbitrator denied a grievance over the grievant's performance rating on two of four elements in her performance appraisal.
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 Agency did not file an opposition to the Union's exceptions.
For the following reasons, we conclude that the Union has not demonstrated that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
In the grievant's annual performance rating for the period December 17, 1987 to December 2, 1988, the grievant was rated as having "exceeded" the performance standard in job elements two and four, and as having "met" the standard in job elements one and three.(1) As a result, the grievant received an overall rating of "Fully Successful." The grievant sought to have her overall rating changed to "Exceptional." When the matter was not resolved, it was submitted to arbitration.
The Arbitrator stated the issue before him as follows:
Was the Grievant's employing agency correct in its classification of the Grievant's performance rating for the period of December 17, 1987 through December 2, 1988 as "Fully Successful" rather than "Exceptional"? If not, what shall the remedy be?
Award at 1.
The Arbitrator found that the facts of the case were not in dispute and that "[a]s a practical matter the parties [were] not asking the Arbitrator as much to interpret the Agreement . . . as they [were] asking the Arbitrator to interpret the . . . Civilian Performance Plan[.]" Id. at 4. The Arbitrator noted that the wording used in the performance standards for job elements 1(a), 1(b), and 3(c) (hereinafter "the standard") was similar and consistent:
Clerk will have met the Standard if charged 3-6 errors not met the standard if charged more than 6 errors---during 3 month period. (citations omitted)
The Arbitrator found that the standard was "clear and unambiguous," in that it provided for the use of a 3-month period to measure numbers of errors and did not distinguish between types of errors. Id. at 4. The Arbitrator also found that the length of the appraisal period was 1 year and that there was no basis "for finding erroneous the Agency's use of a three month period in measuring and considering errors in this case." Id. The Arbitrator further found that the Agency presented "probative evidence in the form of witness testimony and documentation to support the list of errors it relied upon." Id. at 5. Finally, the Arbitrator found that "the weight of the probative evidence supports a finding that more than three errors occurred during the three month period in both Job Element one (1) and Job Element three (3)." Id. Consequently, the Arbitrator denied the grievance.
III. Union's Exceptions
The Union raises two exceptions to the Arbitrator's award. In its first exception, the Union argues that the grievant was denied the benefit of having her performance appraised over a rating period of 1 year, as required by Agency regulation AR 690-400 and Federal Personnel Manual (FPM) Chapter 430-1.(2) Exceptions at 1.
In its second exception, the Union asserts that the Arbitrator improperly prevented the Union from offering evidence at the arbitration hearing. The Union maintains that the Arbitrator refused to allow the Union "to rely on the fact that the performance standard[s] that [the grievant] was forced to perform under were not even coordinated with the union." Id. at 2. The Union asserts that the parties had agreed to abide by a "Memorandum of Agreement," which required that the employee's performance standards and critical elements be discussed with the employee and with the designated Union steward. According to the Union, the Arbitrator did not allow the Union to argue that the Agency failed to comply with the memorandum.
IV. Analysis and Conclusion
A. First Exception
The Union has not established that the award violates applicable regulations governing performance appraisals.
FPM Chapter 430, Subchapter 1-4(b) provides that "[w]hile it generally will be useful to provide for an appraisal period of one year in length, agency systems may provide for an appraisal period of shorter or longer length." Similarly, AR 690-400, subchapter 1-4(h) defines "rating period" as:
The period of time, normally 1 year but no less than 120 days under an approved performance plan, for which an employee's performance will be reviewed and a performance rating prepared.
It is clear in this case that the grievant's performance appraisal covered a period of 1 year. It is also clear that, as relevant here, the numbers of errors committed by the grievant were assessed throughout the entire appraisal period. See, for example, Union Brief to the Arbitrator at 2-5, attached to Union's Exceptions. There is no basis, therefore, on which to conclude that the rating period for which the grievant's performance was appraised violated FPM Chapter 430 or AR 690-400.
Further, nothing in 5 C.F.R. Part 430, FPM Chapter 430, or AR 690-400 precludes an agency from establishing a performance standard which measures performance based on the number of events occurring within a period of less than 1 year, such as a month or a quarter, provided that the standard's criteria are reasonable, attainable and realistic. See Blain v. Veterans Administration, 36 M.S.P.R. 322 (1988) (a performance standard which allowed five errors per quarter, although not an absolute standard, was an unreasonable standard because it required 99.91 per cent accuracy rate to "meet" the standard); Walker v. Department of the Treasury, 28 M.S.P.R. 227 (1985) (a standard which required 99.5 per cent efficiency rendered a standard unreasonable and failed to provide a proper basis for rewarding an employee for an extremely low monthly error rate).
In this case, the Union does not assert, and there is nothing in the record on which to conclude, that the standard by which the grievant's performance is measured over 3-month periods is unreasonable, unattainable, or unrealistic. Consequently, we find that the Union has not established that, by sustaining the grievant's performance standards, the Arbitrator's award is deficient.
B. Second Exception
An arbitration award will be found deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to hear pertinent and material evidence. See, for example, Warner Robins Air Logistics Center, Department of the Air Force, Warner Robins, Georgia and American Federation of Government Employees, Local No. 987, 24 FLRA 968 (1986). An arbitrator has considerable latitude in the conduct of a hearing, however, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See, for example, Veterans Administration and VA Medical Center Register Office and American Federation of Government Employees, Local 1509, 34 FLRA 734, 738 (1990).
We reject the Union's claim that the Arbitrator's award is deficient because he improperly prevented the Union from offering evidence at the arbitration hearing. In particular, the Union has not demonstrated that the Arbitrator acted improperly so as to deny the Union an opportunity to adequately present its case or prevent it from submitting pertinent and material evidence. Rather, in our view, the Union simply disagrees with the manner in which the Arbitrator conducted the hearing. Accordingly, we conclude that this exception provides no basis for finding the Arbitrator's award deficient. See, for example, Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA No. 89 (1990) (exceptions contending, among other things, that arbitrator refused to admit pertinent and material evidence provided no basis for finding the award deficient).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The performance standards in dispute, attached to the Union's Exceptions, read as follows:
Job Element #1 Analyzes Inquiries
1a. Determines whether inquiry should be worked in this section in whole, in part or if it should be routed to another section. Determines proper procedure for working case or proper disposition based on decision not to work case. Clerk will have met the standard if charged 3-6 errors; not met the standard if charged more than 6 errors by the Section Chief for incorrect procedure or disposition during 3 month period.
1b. Clerk will be required to have a thorough knowledge of the awarding and documentation of reserve retirement points in accordance with AR 140-185 and other regulatory guidelines. Clerk will have met the standard if charged 3-6 errors; not met the standard if charged more than 6 errors; and exceeded the standard if charged less than 3 errors by the Section Chief for incorrect awarding and/or computation of retirement points during a 3 month period.
Job Element #3 Does Abbreviated Statements of Service
3a. When utilizing Reserve Unit Attendance Records will exercise the use of Charge-Out cards. Clerk will complete 4.54 Requests for Unit Attendance Search cases per day to be fully successful. Analyst should not receive more than 1 documented failure to use Charge-Out cards during a 3 month period.
3b. Exercised care in the handling of records and returns records to the files at the end of the work day. No more than 1 documented case of misfiling, losing or failure to return records to file at the end of the work day during a three month period.
3c. Conducts Unit Attendance Record Searches as requested by other offices within ARPERCEN, Major Army Headquarters, or when determined to be necessary by the analyst. Clerk will have met the stand