43:0982(80)AR - - AFGE, Council 236 and GSA, Region 9 - - 1992 FLRAdec AR - - v43 p982
[ v43 p982 ]
The decision of the Authority follows:
43 FLRA No. 80
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
GENERAL SERVICES ADMINISTRATION
January 10, 1992
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 Kenneth M. McCaffree filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied the grievance over the grievant's performance appraisal. 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 is employed with the Agency as a realty clerk, GS-1101, at grade 5. The performance plan for realty clerks at the Agency contains four job elements. Each job element sets forth the expected performance of that element in the form of tasks. The Agency's performance appraisal system has defined various levels of performance and supervisors apply those definitions as "'generic' performance standards." Award at 8. For example,
Highly successful (4) means that the employee's pattern of performance throughout the rating period clearly exceeded the standard for expected performance more often than not and rarely or never failed to meet the standard. "Clearly" means that there is no reasonable doubt the standard was exceeded. . . .
(The highly successful rating should be reserved for a pattern of performance that is better than the average employee achieves. Typically, the employee who receives this rating should be one who sometimes performs in an outstanding fashion, does better than expected most of the time, and if he/she fails to meet the standard on an occasion, more than makes up for that deficiency by superior performance on other assignments).
Fully successful means the pattern of performance consistently met the standard for expected performance, on balance. It is necessary to balance instances of exceeding the standard against the occasional instance of failing to meet the standard. . . .
(. . . The fully successful performer may sometimes do outstanding work or sometimes do less than expected, but "on balance" can be relied upon to perform in accordance with the standard for expected performance).
Id. at 8-9 (quoting the Agency's performance management handbook).
For the grievant's performance appraisal year ending February 28, 1990, the grievant's supervisor rated the grievant as highly successful on one of her job elements and as fully successful on her other three job elements. Accordingly, the grievant received an overall summary rating of fully successful. For the previous appraisal year, the grievant had received a summary rating of highly successful. The grievant claimed that the reduction in her summary rating from the previous year was improper, and she filed a grievance alleging that her performance standards were defective, that the Agency had failed to provide her a performance review during the rating period, and that her summary rating and its reduction from the previous year violated the parties' collective bargaining agreement. The grievance was not resolved and was submitted to arbitration on the issues of whether the grievant's performance rating violated the collective bargaining agreement and whether the grievant's supervisor was required by the collective bargaining agreement to have given the grievant a performance review before lowering her summary rating from the previous year.
Before the Arbitrator, the Union argued that the grievant's performance standards violated 5 U.S.C. § 4302 and the collective bargaining agreement because the job elements and performance standards do not define performance at the highly successful or outstanding levels and were merely "elusive goals[.]" Id. at 6 (quoting Union's argument; emphasis omitted). The Union also argued that the rating was based on incorrect and hearsay information and that the Agency violated the agreement by not providing the grievant with any performance reviews.
The Arbitrator rejected the Union's arguments. The Arbitrator determined that the use of generic performance standards to evaluate the "expected performance" of an employee under a specific job element was appropriate. Id. at 10. He ruled that the absence of specific standards for every level of performance for each critical job element did not violate any rules or regulations or the parties' collective bargaining agreement. The Arbitrator also stated that "the Union is now in a weak position to claim a defective performance plan" in view of the grievant's acceptance of a highly successful rating under the same performance plan the previous year. Id.
With respect to the character and nature of the evidence on the grievant's performance, the Arbitrator concluded that the evidence was sufficient to support the ratings of fully successful. The Arbitrator also rejected the Union's claim that the ratings were impermissibly subjective. He held that although some of the judgments by the grievant's supervisor were subjective, there was sufficient objective evidence to support the appraisal.
The Arbitrator noted that the parties' collective bargaining agreement made it clear that interim performance reviews are mandatory. However, the Arbitrator determined that the agreement does not permit a highly successful performance rating to be substituted for a fully successful performance rating based on the failure to provide a performance review unless the Agency has acted in bad faith, and in this case bad faith had never been alleged.
Accordingly, as his award, the Arbitrator concluded that the grievant's disputed performance rating did not violate the collective bargaining agreement and that the failure of the Agency to grant the grievant an interim performance review, by itself, provided no basis under the collective bargaining agreement for canceling the grievant's summary rating of fully successful. Consequently, the Arbitrator denied the grievance.
The Union contends that the award is contrary to 5 U.S.C. § 4302 and that the grievant's performance appraisal violates the parties' collective bargaining agreement.
The Union argues that the grievant's job elements and performance standards fail to define levels of performance for the ratings of highly successful and outstanding. The Union maintains that 5 U.S.C. § 4302 requires that agencies establish performance standards that, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria. The Union asserts that under case precedent of the Merit Systems Protection Board (MSPB), performance standards must be sufficiently specific to provide "a firm benchmark toward which [employees] must aim [their] performance, and not [be] an elusive goal which the [a]gency may find that the employee met or failed to meet at its pleasure[.]" Exceptions at 3, quoting the decision of an MSPB administrative judge in Chaggaris v. GSA, No. DA531D9010318 (Aug. 8, 1990)(emphasis in original). The Union claims that the grievant's supervisor based his ratings on incorrect information and that the grievant's standards were elusive goals under which she was not informed of what performance was required in order to be rated as highly successful or outstanding.
The Union also argues that the grievant's performance appraisal violates the collective bargaining agreement. The Union asserts that under Article 19, Section 5 of the agreement, supervisors are required to apprise employees of their productivity on a regular basis during performance reviews. The Union notes that it is undisputed that this was never done in this case.
IV. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding the award deficient.
Under 5 U.S.C. § 4302, agencies are required to establish performance appraisal systems with job elements and performance standards that will, to the maximum extent feasible, permit accurate evaluation of performance on the basis of objective criteria related to the job in question. For example, American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 41 FLRA 1435, 1438 (1991) (SSA, New York Region). To be objective, a performance standard should be sufficiently precise and specific as to invoke a general consensus as to its meaning and content. National Federation of Federal Employees, Local 1263 and U.S. Department of Defense, Defense Language Institute, Presidio of Monterey, 34 FLRA 697, 700 (1990) (DLI) (citing Wilson v. HHS, 770 F.2d 1048, 1052 (Fed. Cir. (1985)).
Pursuant to section 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 these standards may occur in counseling sessions, in written instructions, or in any manner calculated to apprise employees of the requirements against which they will be measured. U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1346, 35 FLRA 1180, 1185-86 (1990) (citing Papritz v. Department of Justice, 31 MSPR 495, 497 (1986)) (SSA, Chicago). Section 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 that they must meet in order to be evaluated at a level sufficient for job retention. SSA, New York Region, 41 FLRA at 1438. Moreover, a rating official may make a judgment about an employee's performance one level above the level at which a standard is written consistent with the requirements of section 4302. Id. at 1439.
We find that the Union fails to establish that the award is contrary to 5 U.S.C. § 4302. We reject the Union's arguments that the grievant's performance plan must define levels of performance for the ratings of highly successful and outstanding, that the grievant's supervisor relied on incorrect information, and that the performance standards were impermissibly "elusive." Exceptions at 3.
Neither section 4302 nor 5 C.F.R. part 430 precludes the Agency's use of a generic performance standard defining highly successful performance. We find that the Agency's use of a definition of highly successful performance that was set forth in the Agency's performance management handbook and had been previously used in rating the grievant as highly successful sufficiently apprised the grievant of the content of the standard for highly successful performance. See U.S. Department of Veterans Affairs Medical Center, New Orleans, Louisiana and National Federation of Federal Employees, Local 1904, 36 FLRA 718 (1990) (Authority found that use of a definition of exceptional performance that was set forth in the agency's performance appraisal regulations was consistent with 5 U.S.C. § 4302). To the extent the Union contends that the plan does not define the level of performance necessary for an outstanding rating, we note that the absence of a written standard for outstanding performance is not inconsistent with section 4302. As we have repeatedly recognized, judgments made by a supervisor about a grievant's performance one level above a written standard are within the range of objectivity required by law and regulation. For example, DLI, 34 FLRA at 701.
We also reject the Union's argument that the grievant's performance standards were impermissibly subjective or elusive. In our view, the standards, including the definitions of fully successful and highly successful performance, are sufficiently precise and specific so as to invoke a general consensus as to their meanings. See Wilson v. HHS, 770 F.2d at 1052. The Union's reliance on Chaggaris is inappropriate because, as a decision of the MSPB administrative judge, it is not precedential. 5 C.F.R. § 1201.113; SSA, Chicago, 35 FLRA at 1184 n.*.
Moreover, unlike the standards in Chaggaris, the standards in this case are not "devoid of even the most general of quantitative terms such as 'usually,' 'normally,' or 'most.'" Chaggaris, slip op. at 7. For example, under critical elements 1 and 2, the grievant is expected generally to complete typing "within the same day or the following day after assignment[,]" to answer telephones "promptly," and to file material "within 5 days after receipt . . . ." Attachment A to Union's Exceptions. Read in conjunction with the critical elements, the Agency's generic performance standards are sufficiently precise and specific to apprise the grievant of objective standards that she must meet. Thus, in order to be rated fully successful, the grievant's "pattern of performance [must] consistently [have] met the standard for expected performance, on balance." And, as relevant to this grievance, in order to have been rated highly successful, the grievant's "pattern of performance throughout the rating period clearly [must have] exceeded the standard for expected performance more often than not and rarely or never failed to meet the standard." Award at 8-9 (quoting the Agency's performance management handbook).
The Union's argument that the grievant's supervisor relied on incorrect information likewise fails to establish that the award is deficient. The Arbitrator specifically addressed and rejected this argument. He found that the evidence was sufficient and consistent enough to support the ratings of fully successful. We find that the Union's argument constitutes nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony and an attempt to relitigate this matter before the Authority. As such, no basis is provided for finding the award deficient. For example, 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, 354 (1990). Accordingly, we will deny this exception.
We also find that the Union provides no basis for finding that the award is deficient because the grievant's performance appraisal violates the collective bargaining agreement. We construe the Union's exception as a contention that the award fails to draw its essence from the parties' collective bargaining 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 of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, SSA, New York Region, 41 FLRA at 1439. The Union fails to establish that the award is deficient under any of these tests. The Union argues that it is undisputed that the grievant was not provided a performance review as required by the agreement. However, after finding that the grievant was not provided a performance review as required, the Arbitrator ruled that the agreement does not permit a highly successful performance rating to be substituted for a fully successful performance based on a failure to provide a performance review unless the Agency has acted in bad faith, which was not allege