45:0773(66)AR - - NFFE Local 259 and Army Corps of Engineers, Memphis District, Memphis TN - - 1992 FLRAdec AR - - v45 p773



[ v45 p773 ]
45:0773(66)AR
The decision of the Authority follows:


45 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 259

(Union)

and

U.S. DEPARTMENT OF THE ARMY

CORPS OF ENGINEERS

MEMPHIS DISTRICT

MEMPHIS, TENNESSEE

(Agency)

0-AR-2237

DECISION

July 24, 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 James P. O'Grady 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 claimed that he was entitled to a higher performance rating. For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is an Electrician, WG-2805-10, who filed a grievance protesting his performance rating of fully successful for the rating period ending October 1, 1990.

At the time of the appraisal the grievant was also the Union president. The grievant had received performance ratings of highly successful for the two prior performance rating periods. The grievant contended that he had continued to perform at the same level and should have been given an exceptional or, at least, highly successful rating.

The grievance was not resolved and was submitted to arbitration on the following issues:

1. Did the [g]rievant exceed all the standards of his critical elements so a[s] to earn an "Exceptional" performance rating?

2. If not, did the [g]rievant exceed the majority of his critical and non-critical elements so as to earn a "Highly Successful" performance rating?

3. Are standards for the major and critical elements set so that they may be met and exceeded as required by law?

Award at 2.

The Arbitrator stated that the basic area of disagreement between the parties was "whether the performance rating of 'Fully Successful' represents unsatisfactory performance as argued by the Union or does it represent performance in which the [g]rievant has performed all his duties in a satisfactory manner and is not considered an adverse rating." Id. at 11. The Arbitrator found that the grievant was properly rated as fully successful based on the satisfactory performance of his duties. The Arbitrator rejected the Union's arguments that the grievant was entitled to an exceptional rating because he exceeded all his critical elements or that he was entitled to a highly successful rating because he exceeded a majority of his critical and non-critical elements. The Arbitrator also rejected the Union's contention that the grievant's supervisor did not understand the rating system and that the supervisor applied an improper criterion by stating that the grievant "would have to establish 'better communications'" in order to receive a rating of highly successful. Id. In this regard, the Arbitrator found that the record established that a requirement to establish better communications was not significant in the grievant's rating.

The Arbitrator stated that the record in the case "clearly reflects that the [g]rievant was rated on the performance standards that had been assigned to him." Id. at 12. The Arbitrator noted that the grievant's rating of highly successful for the previous rating period could be explained by "extraordinary work" performed by the grievant while assigned to duty on a work boat. Id. However, the Arbitrator found nothing in the grievant's performance for the rating period in dispute that exceeded what was ordinarily expected of him.

The Union also contended before the Arbitrator that the grievant's performance standards were written so that they described the performance required to meet the standards and argued that if an employee "performs better than the standard set for a particular element, then that element has been exceeded." Id. at 13. The Arbitrator agreed that the standards were "written at the 'met level,'" and that they could be exceeded. Id. However, he found that "the record clearly indicates" that the grievant's performance met, but did not exceed, the standards. Id. at 14.

The Arbitrator found that there was no evidence of anti-Union bias stemming from the fact that the grievant had been a Union officer during the evaluation period. The Arbitrator noted that the only evidence of any anti-Union bias was an alleged statement by the Chief of the Operations Branch "that the Union's officials did not need overtime if they did not work regular time . . . ." Id. However, the Arbitrator noted that the Chief denied making that statement and that the Chief did not take part in the grievant's appraisal. The Arbitrator agreed with the Agency "that the Union failed to offer any credible proof of any anti-[U]nion bias on the [Agency's] part." Id. at 15.

The Arbitrator concluded that the grievant had been evaluated properly and that he was not entitled to a rating of either exceptional or highly successful. The Arbitrator denied the grievance.

III. First Exception

A. Positions of the Parties

The Union contends that the Arbitrator's award is contrary to 5 U.S.C. ° 4302(b) and 5 C.F.R. Chapter 430, Subpart B, which provide the legal and regulatory requirements for performance appraisals of Federal employees. The Union contends that the award is also contrary to the relevant Agency regulation governing performance appraisals, Army Regulation (AR) 690-400, Chapter 430. The Union asserts that "[b]y surpassing all of the standards set forth in his performance plan, the grievant clearly exceeded each standard. Therefore, he should have had an exceeds on each standard, and his overall summary rating should be Exceptional[.]" Exceptions at 4. The Union also contends that the Agency used improper factors such as tardiness and sick leave usage to support its position that the grievant was not entitled to a rating higher than fully successful. The Union contends that the use of such factors is contrary to AR 690-400.

The Agency denies that the award is deficient and asserts that the award complies with the legal requirements set forth in Authority precedent for awards concerning performance appraisals.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient because it is contrary to law, rule, or regulation. The Union has not shown that the award is contrary to any provisions of 5 U.S.C. ° 4302(b) or 5 C.F.R. Chapter 430, Subpart B. Further, the Union has not shown that the award is contrary to AR 690-400, Chapter 430. The Arbitrator found that the Agency applied the performance standards established for the grievant's position and he determined, based on the record before him, that the Agency properly rated the grievant's performance as fully successful. The Arbitrator determined that in order to show that the grievant's performance exceeded the established performance standards, the Union would have to show that the grievant's performance was "out of the ordinary" and the Arbitrator concluded that the Union failed to make that showing. Award at 13. In our view, the Union is merely disagreeing with the Arbitrator's conclusion that the grievant was properly rated fully successful and that his performance did not exceed the standards. Such an exception provides no basis for finding an award deficient on the grounds that it is contrary to law, rule, or regulation. See U.S. Department of Veterans Affairs, Medical Center, Chillicothe, Ohio and American Federation of Government Employees, Local 1631, 44 FLRA 628, 630 (1992).

We note the Union's contention that the award is deficient because the grievant's performance standards contained improper factors, such as sick leave usage and tardiness, in violation of the Agency's performance appraisal regulation. An arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of Veterans Affairs, Medical Center, Atlanta, Georgia and National Federation of Federal Employees, Local 2102, 44 FLRA 427, 432 (1992). However, the Union has not shown that the Arbitrator's award is contrary to AR 690-400. Although the Arbitrator did not address the specific effect of the Agency's asserted reliance on sick leave usage and tardiness in conducting the grievant's performance appraisal, the Union made arguments concerning those factors to the Arbitrator and the Arbitrator did not find that the grievant would have received a different rating if those factors had not been considered. The fact that the Arbitrator did not specifically address those factors in his award does not show that the Arbitrator failed to consider them and does not provide a basis for finding the award deficient. See U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 41 FLRA 472, 476-77 (1991) (an arbitrator's failure to set forth specific findings does not provide a basis for finding an award deficient).

Therefore, even if the grievant's performance standards contained such factors, the Union has not shown that the grievant's performance appraisal would have been higher if those factors had not been present. The Union is merely attempting to relitigate the matter before the Authority, which provides no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, 41 FLRA 504, 511 (1991) (Office of Hearings and Appeals). We note that the Arbitrator did address the Union's contention that the grievant's supervisor improperly considered a need for better communications in order to be rated higher than fully successful. The Arbitrator found, however, that "this factor was [not] significant in the [g]rievant's performance rating." Award at 12. Accordingly, we will deny the Union's exception.

IV. Second Exception

A. Positions of the Parties

The Union asserts that the award fails to draw its essence from the parties' collective bargaining agreement, particularly the requirements that performance standards be fair and equitable and that the Agency's performance appraisal regulations be followed. The Union contends in this regard that the Arbitrator incorrectly stated the issue as concerning whether a fully successful rating represents performance that is unsatisfactory. The Union maintains that the proper issue was whether the grievant was entitled to a higher rating. The Union contends that the Arbitrator failed to comply with AR 690-400, incorporated in the parties' agreement, because he failed to find that the grievant exceeded his performance standards and therefore was entitled to a higher rating than fully successful. The Union asserts that the Arbitrator contradicted himself and was arbitrary and capricious when he ruled that the grievant met, but did not exceed, his performance standards. The Union contends that the Agency erred by not giving the grievant a mid-period counselling concerning performance and that the Arbitrator failed to consider that violation of the Agency regulation and the parties' agreement. The Union also contends that the Arbitrator failed to find that the Agency applied improper factors, such as the need for better communication, that were not a part of the grievant's performance standards.

The Agency contends that the grievant was properly rated.

B. Analysis and Conclusions

To establish that an award is deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (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; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 43 FLRA 1266, 1269 (1992).

The Union has not demonstrated that the Arbitrator's award is deficient under any of these tests. In asserting that the award fails to draw its essence from the collective bargaining agreement, the Union argues that the award is contrary to AR 690-400, which is incorporated into the agreement and requires that an employee be rated as highly successful if the employee exceeds a majority of the critical elements. In this regard, the Union contends that the award does not draw its essence from the parties' agreement because the Arbitrator improperly failed to find that the grievant exceeded a majority of his critical elements. However, the Arbitrator determined, based on the record, that the grievant did not exceed any of his critical elements under the performance standards established for his position. Nothing in the Union's contention in this regard demonstrates that the award is deficient on the basis that it fails to draw its essence from the parties' agreement.

Further, we reject the Union's contention that the award is deficient because the Arbitrator failed to address the Agency's alleged failure to provide the grievant with required mid-period counselling. In making the overall finding that the grievant was properly rated, the Arbitrator was not required to address specifically every argument that the Agency violated the agreement, including the regulation incorporated therein. That an award does not address specific provisions of an agreement does not establish that such provisions were not considered by the arbitrator and does not provide a basis for finding the award deficient. See U.S. Department of the Army, Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 45 FLRA No. 38 (1992).

Consequently, we find no basis on which to conclude that the Arbitrator's award constitutes an interpretation of the parties' agreement or the incorporated Agency regulation that is implausible, irrational, or unconnected to the wording of the agreement. Rather, the Union's contentions constitute mere disagreement with the Arbitrator's reasoning and conclusions and his findings of fact. The Union's contentions are nothing more than an attempt to relitigate the issue decided by the Arbitrator. Such contentions provide no basis for finding the award deficient under section 7122(a) of the Statute. See Office of Hearings and Appeals, 41 FLRA at 511. Accordingly, the Union's exception will be denied.

V. Third Exception

A. Positions of the Parties

The Union maintains that the Arbitrator's award is arbitrary and capricious and not based on the facts and issues presented to him. The Union cites a number of arbitration awards concerning the application of performance standards and contends that the Arbitrator's award is inconsistent with those awards. The Union also contends that the Arbitrator improperly relied on the grievant's duty on the work boat to explain the fact that the grievant received a higher rating for the previous performance rating period.

The Agency asserts that the Union's exception presents no valid arguments and contends that the arbitration awards cited by the Union do not show that the award in this case is deficient.

B. Analysis and Conclusions

We interpret this exception as an allegation that the award is deficient because it is based on a nonfact. We will find an award deficient because it is based on a nonfact when the contending party establishes that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 106 (1992). However, the Union's exception fails to establish that the Arbitrator's award is deficient on that basis. The Arbitrator concluded that the grievant was properly rated as fully successful and that the Union failed to show that the grievant was entitled to a rating of highly successful or exceptional on the basis that he exceeded his performance standards. The Union has not shown that the Arbitrator's findings in that regard are clearly erroneous or that the award is based on a nonfact.

Further, we reject the Union's reliance on the awards of other arbitrators as a basis for finding the award deficient. Arbitration awards are not precedential and, therefore, a contention that an award conflicts with other arbitration awards provides no basis for finding an award deficient under the Statute. See U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288, 1295 (1991). Accordingly, as the Union's exception fails to establish that the award is deficient, the exception will be denied.

VI. Fourth Exception

A. Positions of the Parties

The Union asserts that the Arbitrator did not fully consider its claim that the grievant received a lower rating than he deserved because of his activit