41:1435(112)AR - - AFGE Local 2369 and HHS, SSA, NY Region - - 1991 FLRAdec AR - - v41 p1435
[ v41 p1435 ]
The decision of the Authority follows:
41 FLRA No. 112
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator William Daw filed by 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 Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the grievance of an employee who disputed her performance rating on a particular job element. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant's performance in generic job task (GJT) No. 1 (adjudicates claims) was rated at level 4 (Excellent) for the period October 1, 1989, to September 30, 1990. The grievant filed a grievance claiming that her performance in that GJT should have been rated at level 5 (Outstanding). When the grievance was not resolved, it was submitted to arbitration. According to the Arbitrator, in the arbitration proceeding, the Union "relied chiefly on the supervisor's failure to document the appraisal adequately and the extra work load carried by the grievant during the appraisal period." Award at 1.
The Arbitrator held that "[t]he determination of the precise amount of documentation required by the contract [was] not appropriate to expedited arbitration" because such determination would "require at least some testimony of those who actually negotiated the agreement and would have ramifications for the entire agency." Id. Moreover, the Arbitrator stated that, "since the standards for level 5 are not in writing it [would be] difficult to exact a precise degree of documentation." Id. The Arbitrator stated that "[t]he absence of a written standard also implie[d] broad leeway for a subjective judgment by the supervisor and less discretion for the arbitrator." Id.
The Arbitrator concluded that although "the supervisor was remiss to some degree in not documenting his appraisal more fully[,]" there was not "sufficient material . . . to justify setting aside [the] appraisal." Id. The Arbitrator also found "no cause to conclude that the supervisor acted arbitrarily, capriciously, or otherwise in bad faith in rating the grievant . . . ." Id. at 2. Accordingly, the Arbitrator denied the grievance.
III. The Positions of the Parties
A. The Union's Exceptions
The Union asserts that the award conflicts with 5 U.S.C. § 4302(b)(1),(1) as interpreted by the U.S. Court of Appeals for the Federal Circuit in Wilson v. Department of Health and Human Services, 770 F.2d 1048, 1052 (Fed. Cir. 1985) (Wilson), because there was no written performance standard at the "outstanding" level and because the Arbitrator erroneously allowed "'broad leeway for a subject judgment by the supervisor.'" Exceptions at 3 (quoting Award at 1).
The Union also argues that the award fails to draw its essence from the parties' agreement. First, according to the Union, the disputed rating violated Article 21, Section 3A of the parties' agreement.(2) Second, the Union claims that the Arbitrator erred in concluding that "[t]he determination of the precise amount of documentation required by the contract [was] not appropriate for expedited arbitration[.]" Id. (quoting Award at 1). Relying on, among other provisions, Article 25, Section 7 of the parties' agreement,(3) the Union argues that "the amount of documentation is clearly an issue to be decided under the expedited arbitration procedure." Id.
B. The Agency's Opposition
The Agency contends that the Union has not demonstrated that the award is contrary to law or fails to draw its essence from the parties' agreement. In the Agency's view, the Union's contentions "merely constitute disagreement with the Arbitrator's interpretation of the parties' agreement and his assessment of the facts in this case." Opposition at 3.
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is deficient.
A. The Union Fails to Establish That the Award Is Contrary to 5 U.S.C. § 4302
Under 5 U.S.C. § 4302, agencies are required to establish performance appraisal systems which, to the maximum extent feasible, permit accurate evaluation of performance on the basis of objective, job-related criteria. Appraisal systems must provide for establishing performance standards, communicating to employees the established standards, and evaluating employees on them. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 411 (1991) (HHS).
The Union claims that the award violates 5 U.S.C. § 4302(b)(1) because there were no written performance standards provided for the "outstanding" level and because the grievant's rating was impermissibly subjective. We reject these claims.
First, 5 U.S.C. § 4302 does not require that written performance standards be provided for every rating level. Instead, the requirements of this provision are satisfied by communicating to employees the standards they must meet in order to be evaluated at a level sufficient for job retention. See U.S. Department of Veterans Affairs Medical Center, New Orleans, Louisiana and National Federation of Federal Employees, Local 1904, 36 FLRA 718, 723 (1990) (VA Medical Center). See also Melnick v. HUD, 42 MSPB 93, 98 (1989), aff'd 899 F.2d 1228 (Fed. Cir. 1990) (affirmance without opinion under Federal Rule 36); Seplavy v. VA, 41 MSPB 251, 253-54 (1989). Article 21, Section 4 of the parties' agreement indicates that the performance appraisal system under which the grievant was evaluated has five rating levels for each job element and that written standards are provided for levels 2, 3, and 4.
Second, the requirement that rating officials exercise judgment in determining appraisal ratings does not render an appraisal system inconsistent with 5 U.S.C. § 4302. See VA Medical Center, 36 FLRA at 723-24; 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). In particular, "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)." VA Medical Center, 36 FLRA at 724. As noted, the appraisal system under which the grievant was rated provides written standards at levels 2, 3, and 4.
The Union has not demonstrated that the Agency's performance appraisal system, the requirement that the grievant's supervisor exercise judgment in appraising the grievant, or the manner in which the supervisor exercised that judgment, conflicts with 5 U.S.C. § 4302.(4) Accordingly, we conclude that the Union has failed to establish that the award conflicts with that provision.
B. The Union Fails to Establish that the Award Does Not Draw Its Essence From the Parties' Agreement
To demonstrate that an award is deficient because it fails to draw its essence from an agreement, a party must show 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 the 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. For example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 37 FLRA 1144, 1150 (1990).
The Union's exceptions fail to show that the award is deficient under any of these tests. With regard to the disputed rating, the Union has not shown that the Arbitrator's denial of the grievance is irrational, implausible, or otherwise unconnected with the wording or purpose of the parties' agreement.
Similarly, the Union has not shown that the Arbitrator's finding that determinations regarding the "precise amount of documentation required by the contract" were not appropriate to expedited arbitration is deficient on these grounds. Award at 1. That is, despite the Arbitrator's statement, the Arbitrator found that the absence of written standards for the job element in question made "a precise degree of documentation" difficult and implied "broad leeway for a subjective judgment by the supervisor and less discretion for the arbitrator." Id. Further, although the Arbitrator concluded that "the supervisor was remiss to some degree in not documenting his appraisal more fully[,]" the Arbitrator found that there was not "sufficient material . . . to justify setting aside [the] appraisal." Id. Consequently, the Union has not established that the award fails to draw its essence from the parties' collective bargaining agreement. Compare U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103 (1991) (arbitrator's refusal to consider union arguments based on his interpretation and application of the parties' collective bargaining agreement found to be deficient because such justification failed to draw its essence from the parties' collective bargaining agreement).
Therefore, in our view the Union's contentions constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. As such, the contentions provide no basis for finding the award deficient. See, for example, HHS, 39 FLRA at 414-15.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. 5 U.S.C. § 4302(b)(1) provides, in pertinent part, that a performance appraisal system shall provide for:
establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question for each employee or position under the system[.]
2. Article 21, Section 3A provides, in pertinent part:
In general: performance standards and critical or non-critical elements must be consistent with the duties and responsibilities contained in the employee's position description. The performance standards, the critical and non-critical elements and their application must be fair, and reasonable, and, to the maximum extent feasible, objective. . . .
3. Article 25, Section 7 provides, in pertinent part:
The following expedited arbitration procedure is hereby adopted with respect to any grievance which involves:
--An employee's formal performance appraisal, other than demotions or removals for unacceptable performance under 5 USC Chapter 43[.]
4. The Union's reliance on Wilson is misplaced. In Wilson, the court examined written standards to determine whether they satisfied the requirements of 5 U.S.C. § 4302. The court did not interpret that provision as requiring an agency to provide written standards at all performance levels or prohibiting rating officials from exercising judgment in applying standards.