45:0943(94)AR - - AFGE Local 236 and GSA, Region 9, San Francisco, CA - - 1992 FLRAdec AR - - v45 p943

45 FLRA No. 94

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 John B. LaRocco 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 a GS-9 Engineering Technician who filed a grievance protesting his performance rating of level 3 (fully successful) for the rating period ending on February 28, 1991. The grievant contended that he should have received a rating of at least level 4 (highly successful).

The grievance was not resolved and was submitted to arbitration. Procedurally, the Arbitrator determined that the grievance was arbitrable under the parties' agreement. On the merits of the grievance, the parties stipulated to the following issue:

Did the Agency violate Article 19, Sections 4 or 6, of the National Agreement by issuing an annual rating of [f]ully [s]uccessful to [the grievant] for the rating year ending February 28, 1991? If so, what should be the remedy?

Award at 2.

The parties agreed that the grievant's overall performance rating was based on ratings of fully successful that he received on two critical elements of his position. These critical elements require the grievant to prepare "'cost estimates on time and of acceptable quality'" and to review the estimates "'within established timeframes.'" Id. at 2-3 (quoting Joint Exhibit 2). The performance objective of both critical elements is to complete assigned projects within established timeframes without any need for corrective revisions to the estimates.

The supervisor rated the grievant on the basis of his completion of 24 cost estimates during the rating year. The supervisor found that 9 of the grievant's cost estimates were correct and were submitted on time; 3 were completed on time but were incorrect; and the remaining 12 were correct, but were completed late. The supervisor also found that only 2 of the 5 estimate reviews that the grievant completed during the year were submitted on time. The supervisor considered a project timely completed if the project was completed without errors by the scheduled completion date and within an allotted number of hours of work. Although the supervisor sets the completion dates and work hour allotments, employees could request extensions of timeframes and such extensions were routinely granted.

The supervisor rates an employee fully successful if the technician correctly completes 80% to 90% of the assigned projects within designated deadlines. The supervisor "neglected to inform" the grievant about this standard. Id. at 4. Because the grievant did not correctly complete 80% of the assigned projects within the applicable timeframes, the supervisor initially rated the grievant at level 2 (marginally successful). However, based on the grievant's improved performance during the final quarter of the rating year, the supervisor raised the grievant's rating to level 3.

The Arbitrator found that "[t]he critical elements, the performance objectives, and the performance standards [of the grievant's position] sufficiently apprised [the] [g]rievant of the level of performance necessary to obtain a rating of '3,' 4,' or '5.'" Id. at 8. The Arbitrator further found that the grievant "knew that to be successful in his position, he must timely complete the projects assigned to him within an allotted number of work hours." Id. Noting that the deadlines for completed work were flexible and that the grievant did not seek any extensions of time even though he had the opportunity to do so, the Arbitrator determined that the "[s]upervisor reasonably concluded that the scheduled completion dates for [the] [g]rievant's projects could be met without undue difficulty." Id. at 9.

Additionally, the Arbitrator found that although the grievant "was unaware of the exact percentage[s] necessary to be fully successful or highly successful, the mere fact that the supervisor did not communicate the percentages to [the] [g]rievant was irrelevant in this particular case for two reasons." Id. First, the Arbitrator stated that the grievant "clearly knew from the critical elements that the more projects he completed late or inaccurately, the lower his rating." Id. Thus, the Arbitrator found that the grievant "generally knew what performance would result in a higher rating." Id. Second, the Arbitrator found that rather than applying the percentages when rating the grievant, "the supervisor exercised his discretion to deviate from the percentages because he rated [the] [g]rievant 'fully successful' based on [the] [g]rievant's improved performance during the last three months of the rating year." Id. Therefore, the Arbitrator concluded that "the percentages were not a factor in [the] [g]rievant's final rating." Id. at 9-10.

The Arbitrator emphasized that his finding that the fact that the supervisor did not communicate the percentages to the grievant was irrelevant was restricted to "the peculiarities of this case." Id. at 10. The Arbitrator stated that his decision should not be construed "to permit supervisors to apply secret performance standards or to excuse supervisors from adequately communicating those standards to their subordinates." Id. The Arbitrator denied the grievance.

III. Positions of the Parties

The Union contends that the award: (1) is contrary to law; (2) is based on a nonfact; and (3) fails to draw its essence from the parties' collective bargaining agreement. With respect to its contention that the award violates law, the Union asserts that the award is contrary to the requirement in 5 U.S.C. ° 4302(b)(2) that "'an agency must, at the beginning of each appraisal period, communicate to each employee the [p]erformance [s]tandard[s] and [c]ritical [e]lements of the employee's position.'" Exceptions at 2, citing American Federation of Government Employees, Council 236 and General Services Administration, Region 9, 43 FLRA 982, 986-87 (1992) (GSA). According to the Union, the Arbitrator found that the supervisor never communicated to the grievant the requirements against which he would be measured and the Arbitrator erred in finding this fact irrelevant. The Union asserts that the award was based on a nonfact because, contrary to the Arbitrator's finding, there was nothing in the written standards for the grievant to "generally kn[o]w what performance would result in a higher rating." Id. at 3 (quoting Award at 9). The Union made no specific argument with respect to its claim that the award fails to draw its essence from the parties' collective bargaining agreement.

The Agency contends that the Union has failed to show that the award is deficient. According to the Agency, the Arbitrator correctly concluded that the grievant was aware of the requirements against which he would be measured because he knew what was expected of him in completing the projects assigned to him within an allotted number of work hours. The Agency also asserts that the Arbitrator properly found that the supervisor's failure to communicate the percentages necessary for a fully successful or highly successful rating was irrelevant in this case because the percentages were not a factor in the grievant's rating.

IV. Analysis and Conclusions

We conclude that the Union fails 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(b)(2)

The Union has not shown that the award is contrary to 5 U.S.C. ° 4302(b)(2) on the basis that the Agency failed to communicate to the grievant the performance standards and critical elements of the grievant's position. We reject the Union's contention that the Arbitrator found that the supervisor never communicated to the grievant the requirements against which he would be measured. Rather, the Arbitrator found that the critical elements, the performance objectives, and the performance standards of the grievant's position "sufficiently apprised [the] [g]rievant of the level of performance necessary to obtain a rating of '3,' 4,' or '5.'" Award at 8. This finding is consistent with the requirements discussed in our decision in GSA. See GSA, 43 FLRA at 987.