45:0943(94)AR - - AFGE Local 236 and GSA, Region 9, San Francisco, CA - - 1992 FLRAdec AR - - v45 p943
[ v45 p943 ]
The decision of the Authority follows:
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. Moreover, the Union's reliance on the Arbitrator's finding that the supervisor did not communicate to the grievant the percentages for a fully successful or highly successful rating does not demonstrate that the award is inconsistent with 5 U.S.C. ° 4302. The Arbitrator found that this fact was irrelevant in this case because, among other things, the percentages were not a factor in the grievant's rating. In our view, the Union is merely disagreeing with the Arbitrator's conclusion that the grievant was aware of the performance standards of his position necessary for him to obtain a particular rating. Accordingly, we find that the Union's exception constitutes mere disagreement with the Arbitrator's findings and conclusions in that regard and, as such, provides no basis for finding the award deficient. See International Association of Machinists and Aerospace Workers, Lodge 39 and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia, 44 FLRA 1291, 1300 (1992).
B. The Award Is Not Based on a Nonfact and Does
Not Fail to Draw Its Essence from the Parties'
Collective Bargaining Agreement
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). The Union's exception fails to establish that the Arbitrator's award is deficient on this basis. The Union contends that the grievant was rated on percentage requirements that were not in the grievant's written performance standards. As noted above, the Arbitrator found that the grievant was "sufficiently apprised" of the requirements for a highly successful performance rating and concluded that the grievant was properly rated as fully successful and was not entitled to a higher rating. Award at 8. The Arbitrator found that the grievant's supervisor did not use a percentage cutoff in evaluating the grievant's performance and that a percentage requirement was not a factor in the grievant's rating. The Union fails to establish that the Arbitrator's finding is clearly erroneous. See, for example, U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 45 FLRA 411, 419 (1992). Accordingly, the Union has not shown that the Arbitrator's award is based on an erroneous central fact underlying the Arbitrator's award. Therefore, we reject the Union's contention in this regard.
We also conclude that the Union has not established that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award 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. Depar