44:0628(52)AR - - VAMC, Chillicothe, OH and AFGE Local 1631 - - 1992 FLRAdec AR - - v44 p628
[ v44 p628 ]
The decision of the Authority follows:
44 FLRA No. 52
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 26, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Louis V. Imundo, Jr. 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 did not file an opposition to the Union's exception.
The Arbitrator determined that the grievant's performance appraisal had been affected by the grievant's union activities, but determined that the grievant was not entitled to a higher rating on his disputed job element.
We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
For the rating period of April 1, 1990, to March 31, 1991, the grievant was rated fully successful in his critical job element entitled "equipment maintenance/operation" and received an overall rating of fully successful. The grievant filed a grievance contending that he should have been rated exceptional in his critical job element and that his union activities adversely affected his appraisal. The grievance was not resolved and was submitted to arbitration.
Although the Arbitrator determined that the grievant's performance appraisal was adversely affected by his union activities, the Arbitrator determined that the grievant was not entitled to a higher rating on his disputed job element. The Arbitrator explained that the grievant's performance standards for the disputed element only define fully successful performance. The Arbitrator noted that on August 28, 1990, the Agency issued Personnel Circular Letter (PCL) No. 90-19, which defines exceptional performance as occurring "when fully successful standards are significantly surpassed, resulting in performance which far exceeds normal expectations and results in major contributions to the organization." Award at 27 (quoting PCL Letter No. 90-19). Although the Arbitrator found that "[t]he record is devoid of any document defining Exceptional performance prior to the issuance of PCL No. 90-19 on August 28, 1990[,]" the Arbitrator concluded that a similar definition of exceptional performance existed prior to August 1990. Id. at 28.
Reviewing the evidence and testimony presented, the Arbitrator ruled that the grievant's performance did not meet either his supervisor's definition of performance above fully successful or the definition of exceptional performance stated in PCL No. 90-19. The Arbitrator found that "the Union failed to present sufficient, substantive, relevant testimony or evidence to conclusively prove that [the grievant's] performance on the critical element exceeded the Fully Successful standard." Id. at 29. Accordingly, the Arbitrator determined that the grievant's disputed appraisal was an accurate reflection of his actual job performance.
III. Union's Exception (*)
The Union contends that the award "is contrary to law, rule and regulation, as well as contrary to decisions of the Authority . . . ." Exception at 1. The Union argues that the Arbitrator failed to properly consider the requirements of the parties' collective bargaining agreement relative to the appraisal process. The Union also argues that although the Arbitrator specifically found that the record was devoid of any document defining exceptional performance prior to August 28, 1990, the Arbitrator held the grievant to that definition of performance. The Union claims that the grievant cannot be evaluated against a performance level that was not established until 9 months after his rating period started.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient because it is contrary to law, rule, regulation, or decisions of the Authority. In our view, the Union is merely disagreeing with the Arbitrator's conclusion that the grievant was rated properly under the performance standards established for his position. Such an exception provides no basis for finding an award deficient on the grounds that it is contrary to law, rule, regulation, or decisions of the Authority. See U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 40 FLRA 644, 651 (1991) (SSA, Region VI).
In addition, in view of the Arbitrator's express conclusion that a similar definition of exceptional performance existed prior to the issuance of PCL No. 90-19, we find that the Union's claim that the grievant was held to a performance level that was not established until 9 months into his rating period constitutes disagreement with the Arbitrator's findings of fact. As such, the Union's claim provides no basis for finding the award deficient. See SSA, Region VI, 40 FLRA at 650. Finally, to the extent that the Union's claim that the Arbitrator failed to properly consider the parties' collective bargaining agreement constitutes a contention that the award fails to draw its essence from the agreement, the Unio