46:1631(149)AR - - NFFE Local 1442 and Letterkenny Army Depot, Chambersburg, PA - - 1993 FLRAdec AR - - v46 p1631



[ v46 p1631 ]
46:1631(149)AR
The decision of the Authority follows:


46 FLRA No. 149

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1442

(Union)

and

U.S. DEPARTMENT OF THE ARMY

LETTERKENNY ARMY DEPOT

CHAMBERSBURG, PENNSYLVANIA

(Agency)

0-AR-2328

_____

DECISION

February 26, 1993

_____

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 M. Hamrick 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 Union filed a grievance on behalf of the grievant alleging that she was improperly rated. The Union also filed a second grievance because the Agency failed to respond in a timely manner to the first grievance. The Arbitrator denied the grievances. For the following reasons, we will remand the award to the parties to have them obtain a clarification of the award from the Arbitrator.

II. Background and Arbitrator's Award

The grievant is a computer systems analyst. The grievant received a performance rating of Fully Successful for the period from June 15, 1990, to June 15, 1991. The Union filed a grievance on behalf of the grievant alleging that she received an improper and inaccurate performance appraisal as the result of "reprisal[,] disparate treatment[,] and invalid performance standards . . . ." Award at 2. As a remedy, the Union requested, among other things, that the grievant's ratings on some job elements be raised from Meets to Exceeds and that the grievant's overall rating be raised to Excellent. The grievance was denied and the Union appealed the grievance to step 3 of the parties' negotiated grievance procedure. The Agency did not respond in a timely manner at step 3 of the grievance procedure as required by Article 23, Section 13 of the parties' agreement.(*) The Union then filed a second grievance claiming that the grievant was entitled to the remedy sought in the first grievance under the provisions of Article 23, Section 13.

Although the Agency admitted that it was late in responding to the step 3 appeal, it asserted that the Union's proposed remedy could not be granted under Article 23, Section 13 because that remedy would be contrary to law, rule, or regulation. The grievances were not resolved and were submitted to arbitration.

The Arbitrator stated the issues before him as:

1. Is the grievance procedurally defective because of the Agency's failure to answer the Union's Step 3 appeal in a timely fashion? If not,

2. Did the Agency violate established laws, rules, regulations or the [parties' collective bargaining agreement] when it determined the grievant's rating level for the performance rating period from June 15, 1990 to June 15, 1991? If so, what is the remedy?

Award at 4.

The Union argued before the Arbitrator that its requested remedy should be granted in accordance with the provisions of Article 23, Section 13 of the parties' agreement. The Union also argued that the Agency violated law and Government-wide and Army performance appraisal regulations by improperly rating the grievant's performance in job elements 1, 2, 3, 4, and 5. Additionally, the Union claimed that the grievant's performance standards were invalid.

The Arbitrator found that the "automatic remedy language of Article 23, [Section] 13 [of the parties' agreement] does not apply to [the proposed remedy in] this case because [the remedy] is contrary to . . . law, rule or regulation." Id. at 17. Based on a review of 5 U.S.C. § 4302, 5 C.F.R. § 430, and AR 690-400-430, the Arbitrator stated that "the rating [level] is something employees must earn based on their performance and not something that can be given as an automatic remedy because of a procedural error committed by the Agency." Id. at 19-20. The Arbitrator further stated that "ratings can be challenged on the basis of the merits of the rating and, if it can be proven that some sort of error was made as alleged by the Union in [this] case, then the rating can be changed." Id. at 20.

The Arbitrator reviewed the testimony and documentation presented by the parties regarding the grievant's performance when compared with the performance standards. In addressing the merits of the case, the Arbitrator noted that the Agency's "performance standards are written at a 'MET' rating level" and are "geared toward the achievement of a 'Fully Successful' rating and are not intended or do not state how to achieve a 'Highly Successful' or 'Exceptional' rating." Id. at 21. The Arbitrator further noted that, in order for the grievant to achieve a Fully Successful rating, the grievant's performance could not result in more errors than the number set forth in the performance standards for each element. The Arbitrator found that the testimony and evidence concerning the five job elements indicated that "the grievant, for the most part, did not exceed the number of stated violations, incidents, surprises, complaints and/or misunderstandings set forth in the performance standards for the various job elements." Id. at 24.

However, the Arbitrator rejected the Union's claim that because the grievant had fewer than the stated number of errors, the grievant exceeded the standards and should have received a higher rating. The Arbitrator asserted that the Union overlooked the fact "that the standards [were] written for a 'MET' compliance or the achievement of a 'Fully Successful' rating." Id. The Arbitrator found that the "phrase 'no more' in each of the standards implies that, if the grievant had a greater number of violations, incidents, etc., than stated, then the grievant would not have performed up to a standard to be rated 'Fully Successful.'" Id. The Arbitrator also stated that "the fact that [the grievant] might not have had any violations, incidents, etc. means only that her performance conformed to the standards established for a 'Fully Successful' rating." Id. The Arbitrator determined that "[t]he evidence presented by the Union was not sufficient to establish that the grievant was entitled to an 'Exceptional' rating or that the ratings given the grievant for the various job elements were improper or in violation of the laws, rules and regulations cited by [the Union]." Id. at 24-25.

The Arbitrator found that the standards were not invalid. The Arbitrator "reiterated that the grievant and her supervisor reached agreement on the performance standards in July[] 1990" and that the grievant "never registered any complaint at that time that the standards were invalid." Id. at 27. The Arbitrator "concluded that the Agency did not violate any law, rule or regulation nor did it violate any of the rights of the grievant in arriving at the determination that her performance was 'Fully Successful.'" Id. Therefore, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

The Union contends that the Arbitrator failed to cite any laws, rules, or regulations in finding that the automatic remedy language in the parties' collective bargaining agreement did not apply in this case. Therefore, the Union argues that the Arbitrator's conclusion is without support and that the remedy requested by the Union should be granted.

The Union also argues that the Arbitrator misinterpreted the Agency's rules and regulations. The Union contends that the Arbitrator's "interpretation of the Army's regulation covering the administration of the performance appraisal system is erroneous." Exceptions at 5. The Union argues that "the Arbitrator erred when he stated that an employee with no, or fewer errors than the 'met' level would still merit only a 'Fully Successful' rating." Id. at 6. Furthermore, the Union argues that, according to the Arbitrator, "there would be no difference in an employee's performance rating who barely 'met' the 'no more' limit in a particular standard versus the employee who receives fewer or even no errors on the same standard." Id. The Union questions how an employee could receive a rating higher than the Fully Successful level. In this regard, the Union argues that AR 690-400-430 clearly states that "absolute standards that cannot be exceeded, should be avoided." Id. at 7. The Union argues, therefore, that the grievant should have received at least a Highly Successful rating based on the correct application of AR 690-400-430.

B. Agency

The Agency argues that the Union has not shown how the Arbitrator's award misapplied or misinterpreted the parties' collective bargaining agreement. The Agency contends that the Union is only attempting to relitigate the case before the Authority. The Agency also argues that the Union's claim that the grievant exceeded her performance standards is not substantiated "given the [A]rbitrator[']s specific findings concerning the grievant's performance." Opposition at 3.

IV. Analysis and Conclusions

We find that the award is ambiguous and must be remanded to the parties to have them obtain a clarification of the award from the Arbitrator.

The Union contends that the Arbitrator's finding that the automatic remedy provided for in Article 23 of the parties' agreement does not apply in this case is without support. We construe the Union's contention as an argument that this portion of the award fails to draw its essence from the agreement. To establish that an award is deficient on this ground, 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 failed to establish that this portion of the award is deficient under any of these tests. The Arbitrator concluded that, under Article 23, Section 13, the granting of the remedy requested by the Union would be contrary to law, rule, or regulation. Specifically, the Arbitrator found that, under law and regulation, an employee's performance appraisal must be based on a comparison of the employee's performance and applicable performance standards and concluded that, because the grievant's Fully Successful rating was warranted based on her performance, a rating of Exceptional would be contrary to law and regulation within the meaning of Article 23, Section 13. The Union has not shown that the Arbitrator's interpretation of Article 23, Section 13 of the agreement is irrational, implausible, or otherwise deficient. Rather, the Union's contention constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement and, as such, provides no basis for finding this portion of the award deficient. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992).

Further, the Arbitrator rejected the Union's claim that because the grievant had fewer than the stated number of errors set forth in the various job elements, the grievant exceeded the standards and should have received a higher rating. The Arbitrator stated that the Agency's performance standards were written for the achievement of a Fully Successful rating. The Arbitrator determined that the evidence did not establish that the grievant was entitled to an Exceptional rating or that the grievant's ratings for the various job elements were improper or in violation of law, rule, or regulation. The Arbitrator found that the grievant's performance standards were not invalid. The Arbitrator also stated that "[t]he fact that [the grievant] might not have had any violations, incidents, etc. means only that her performance conformed to the standards established for a 'Fully Successful' rating." Award at 24.

We cannot determine whether the Arbitrator denied the grievance: (1) because he found that no employee could have exceeded the standards for a Fully Successful rating in view of the manner in which those standards were written; or (2) because he found that, although the written standards for a Fully Successful rating could have been exceeded, the grievant's performance did not exceed the written standards for a Fully Successful rating. If the Arbitrator found that no employee could have exceeded the standards for a Fully Successful rating in view of the manner in which those standards were written, his award would be deficient because the award would enforce standards that are inconsistent with law and applicable Government-wide regulations set forth in 5 C.F.R. Part 430 under which employees are to be given the opportunity to exceed Fully Successful ratings in individual elements as well as in overall summary ratings.

Specifically, under 5 U.S.C. § 4302, as implemented by 5 C.F.R. §§ 430.204(e) and (h), each performance appraisal system must provide for at least three rating levels for each critical element and at least three and not more than five summary rating levels. Moreover, 5 C.F.R. § 430.206(d) provides that procedures must be described in an agency's Personnel Management Plan to ensure that employees whose performance exceeds normal expectations are rated at levels above Fully Successful.

Thus, if the Arbitrator determined that no employee could have exceeded the standards for a Fully Successful rating in view of the manner in which those standards were written, we would find that his award is deficient as contrary to law and Government-wide regulations. On the other hand, if the Arbitrator found only that, although the written standards for a Fully Successful rating could have been exceeded, the grievant's performance in the circumstances of this case did not exceed the written standards for a Fully Successful rating, the award would not violate law and regulation.

Because of the award's ambiguity, we cannot determine whether the award is deficient and we will remand the award to the parties to have them obtain a clarification from the Arbitrator, absent settlement of the grievance. On clarification, the Arbitrator should specify, consistent with this opinion, the basis for his award. On issuance of a clarified award, either party may file timely exceptions to the award with the Authority.

V. Decision

The award is re