36:0718(75)AR - - Veterans Affairs, Medical Center, New Orleans, LA and NFFE Local 1904 - - 1990 FLRAdec AR - - v36 p718



[ v36 p718 ]
36:0718(75)AR
The decision of the Authority follows:


36 FLRA No. 75

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

NEW ORLEANS, LOUISIANA

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1904

(Union)

0-AR-1805

DECISION

August 20, 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 Barry J. Baroni. The grievant filed a grievance disputing her performance appraisal rating. The Arbitrator found that the grievant had been properly rated and denied the grievance.

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 U.S. Department of Veterans Affairs (the Agency) filed an opposition to the Union's exceptions.

We conclude that the Union fails to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

For the performance appraisal period of April 1, 1987, to March 31, 1988, the grievant was rated at the "fully successful" level for each of her job elements and received an overall rating of "fully successful." The grievant filed a grievance claiming that she should have been rated at the "exceptional" level for each of her job elements and should have received an overall rating of "outstanding." The grievance was not resolved and was submitted to arbitration.

The Arbitrator found that, for the rating period in dispute, the Agency had changed the rating procedures of its performance appraisal system. The new system reduced the levels of performance from four to three: exceptional, fully successful, and less than fully successful. The Arbitrator noted that the new appraisal system contains written performance standards only at the "fully successful" level and requires that an employee's performance contribute to the organization in a "major" way to be rated at the "exceptional" level. The Arbitrator also noted the applicability of the following definition of the term "exceptional," which he attributed to the Office of Personnel Management (OPM), and stated was found "in CFR Chapter 430 Section B(2)(f)(2)":

Exceptional. Fully Successful performance standards for the element are being significantly surpassed. The level is reserved for employees whose performance in the element far exceeds normal expectations and results in major contributions to the organization.

Award at 5. In the Arbitrator's view, "[i]t was obviously OPM's intent, under the current rating system, to make it considerably more difficult for employees to receive an 'outstanding' evaluation than it was under the old system." Id.

The Arbitrator denied the grievance. He concluded that the grievant's supervisor had correctly rated the grievant's performance for the disputed rating period. The Arbitrator determined that the grievant's actual performance was within the range described by the written standards for the "fully successful" level. He found that the grievant's performance was not of the type that "far exceeds normal expectations and results in major contributions to the organization" as required under the performance appraisal system's definition for the "exceptional" level of performance. Id. at 8.

III. First Exception

A. Positions of the Parties

The Union contends that the Arbitrator misidentified an agency regulation. The Union states that the definition of the "exceptional" level of performance applied by the Arbitrator is set forth in the Agency's performance appraisal regulation and that the Arbitrator erroneously cited the regulation as part of the Code of Federal Regulations promulgated by OPM. The Union claims that the misidentification had a "profound impact on the arbitrator's decision." Exceptions at 2. The Union maintains that the Arbitrator accepted the definition as binding regulatory authority and that this resulted in a deficient award because the Agency's definition "runs counter" to 5 C.F.R. Part 430. Id. The Union asserts that Part 430 requires agencies to ensure that only those employees whose performance exceeds normal expectations are rated at levels above "fully successful" but that Part 430 does not establish that performance must far exceed normal expectations to be rated at the "exceptional" level. The Union argues that if the Arbitrator had properly identified the applicable provisions of 5 C.F.R. Part 430 as governing exceptional performance, it is likely that the grievant would have been awarded at least an "exceptional" overall rating.

The Agency contends that the Arbitrator's misidentification of the Agency's performance appraisal regulation as an OPM regulation was a harmless error. The Agency states that the Arbitrator mistakenly identified VA Manual MP-5, Part I, Chapter 430 as "CFR Part 430" in discussing the prescribed achievement level for an "exceptional" rating. The Agency argues that the Agency's definition remains the applicable standard of reference because it was established consistent with 5 C.F.R. Part 430. The Agency asserts that the Arbitrator's misidentification was harmless because it clearly had no bearing on the substance of the decision reached and there was no prejudice to the Union. The Agency also asserts that, by providing that agencies ensure that employees exceed normal expectations in order to be rated above "fully successful," 5 C.F.R. Part 430 does not prohibit a requirement that the employee's performance far exceed normal expectations. The Agency maintains that the consistency of its performance appraisal system with law and regulation is reflected by the system's approval by OPM under 5 U.S.C. § 4304.

B. Analysis and Conclusions

We conclude that the Arbitrator's misidentification of the Agency's definition of exceptional performance provides no basis for finding the award deficient.

We find that the Union fails to establish that the Arbitrator's application of the Agency's definition of exceptional performance is contrary to 5 C.F.R. Part 430. Agencies are required by 5 C.F.R. § 430.206(d) to establish procedures to ensure that only employees whose performance exceeds normal expectations are rated at levels above "fully successful." Under VA Manual MP-5, Part I, Chapter 430, to be rated "exceptional," an employee's performance must far exceed normal expectations and result in major contributions to the organization. The Agency states that under 5 U.S.C. § 4304, OPM reviewed and approved its performance appraisal system. We are not persuaded by the Union's allegation, without any citations of authority, that 5 C.F.R. § 430.206(d) prohibited the Agency's establishment of its definition of exceptional performance and the Arbitrator's application of that definition.

We view the Union's contention, that but for the misidentification the result likely would have been different, as a claim that the award is based on a nonfact. We will find an arbitration award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 36 FLRA 86 (1990) (Headquarters, XVIII Airborne Corps). We find that the Union fails to establish that the award is deficient on this basis.

In this case, the Arbitrator denied the grievance because he found that the grievant's performance was not of the type that warranted a rating of "exceptional" under the performance appraisal system's definition of exceptional performance. Because we have found that 5 C.F.R. Part 430 did not prohibit the Agency's establishment of its definition of exceptional performance and the Arbitrator's application of that definition, we agree with the Agency that its performance appraisal system's definition constituted the applicable standard for appraising the grievant's performance. Although the Arbitrator misidentified the source of the definition of exceptional performance as an OPM, rather than an Agency, regulation we reject the Union's contention that the definition was not controlling. Consequently, the Union fails to demonstrate that the Arbitrator's erroneous reference to the source of the definition was a central fact underlying the award such that the Arbitrator would have reached a different result if he had not misidentified the source of the definition. See Headquarters, XVIII Airborne Corps (union failed to establish that the matter asserted to be clearly erroneous was a central fact underlying the award).

Accordingly, we will deny the Union's exception.

IV. Second Exception

A. Position of the Parties

The Union contends that the award is deficient because the established performance standards and their application for ratings above "fully successful" are contrary to law. The Union argues that, as a result of the definition of exceptional performance, which requires a major contribution to the organization, the standards are contrary to 5 U.S.C. § 4302.(*) The Union maintains that the performance standards "are devoid of any expression whatsoever of what project work would yield a finding of 'major contribution.'" Exceptions at 5. The Union claims that, consequently, the standards are not objective and they do not permit an accurate performance evaluation as required by section 4302. The Union also claims that this deficiency cannot be cured by "the ad hoc definition of exceptional performance which was applied to the grievant." Id.

The Agency contends that the Union's exception is, in essence, mere disagreement with the Arbitrator's findings of fact and his reasoning and conclusions, and the exception provides no basis for finding the award deficient.

B. Analysis and Conclusions

We conclude that the Union fails to demonstrate that the established standards and their application for ratings above "fully successful" are contrary to law.

Under 5 U.S.C. § 4302(b)(1), agencies must establish performance appraisal systems that will, to the maximum extent feasible, permit accurate evaluation of performance on the basis of objective criteria related to the job. National Federation of Federal Employees, Local 1263 and U.S. Department of Defense, Defense Language Institute, Presido of Monterey, 34 FLRA 697, 700 (1990). The Merit Systems Protection Board (MSPB) has held that the requirements of section 4302(b)(1) are satisfied by communicating to employees the standards that they must meet in order to be evaluated as demonstrating performance at a level that is sufficient for job retention. For example, Melnick v. HUD, 42 MSPR 93, 98 (1989), aff'd 899 F.2d 1228 (Fed. Cir. 1990) (affirmance without opinion under Federal Circuit Rule 36) (Melnick). More specifically, the MSPB has held that when performance standards are written at the "fully successful" level and an employee is rated on each job element as "exceptional," "fully successful," or "less than fully successful," the level of performance described in the written standard communicates the level that is sufficient for job retention and satisfies the requirements of section 4302(b)(1). Seplavy v. VA, 41 MSPR 251, 253-54 (1989).

The Agency's performance appraisal system in this case has performance standards written at the "fully successful" level and employees, including the grievant, are rated on each element as "exceptional," "fully successful," or "less than fully successful." These performance standards do not require performance that results in a major contribution to the organization. Performance that results in a major contribution to the organization is required, pursuant to the Agency's definition, only at the "exceptional level." Based on the precedent of the MSPB interpreting and applying the requirements of section 4302(b), it is our view that those requirements do not encompass a definition that applies only at the "exceptional" level of performance. We find that "[t]he agency . . . satisf[ied] its obligation to the employee under 5 U.S.C. § 4302(b) by communicating to the employee the standards she must meet in order to be evaluated as demonstrating performance at a level which is sufficient for retention in her position." Melnick, 42 MSPR at 98. We reject the Union's claim that the standards and their application for the "exceptional" level of performance are contrary to section 4302(b)(1).

Furthermore, we have held that the requirement that rating officials exercise judgment in determining appraisal ratings does not render an appraisal system inconsistent with section 4302(b)(1). 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, 34 FLRA 348, 353 (1990). We recognized that under Federal Personnel Manual Letter 430-4, judgments made by a rating official about an employee's performance one level above the written standard are considered to be within a reasonable range of accuracy and objectivity and are consistent with the requirements of section 4302(b)(1). Id. Therefore, in this case, where the definition of exceptional performance is set forth in the Agency's performance appraisal regulati