47:0446(36)AR - - AFGE, Local 2921 and DOD, Army and Air Force Exchange Service, Dallas, TX - - 1993 FLRAdec AR - - v47 p446

[ v47 p446 ]
The decision of the Authority follows:

47 FLRA No. 36





LOCAL 2921










April 16, 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 Richard F. Dole, 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 filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to properly counsel the grievant regarding her work performance and failing to keep a written record of the grievant's counseling sessions. For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

In 1992 after the grievant received a lower overall performance rating than she received for the previous appraisal period, a grievance was filed claiming that the Agency failed to provide a written record of performance counseling and sufficient guidance to enable the grievant to improve her performance during the rating period. When the grievance was not resolved, it was submitted to expedited arbitration on the following issue, as stipulated by the parties:

Did management violate the provisions of the collective bargaining agreement, specifically, Article 14[,] [section] 1 or 2; Article 18[,] [section] 2(b)(1),(3),(4),(5) and Article 40[,] [section] 4? If so, what is the appropriate remedy?

Award at 1 (emphasis omitted).

The Arbitrator found that the Agency's "core contractual commitment" under Article 18 of the agreement (1) "is to evaluate work performance 'fairly and objectively'[,]" and that "the Union did not satisfy its burden of proving that the [Agency's] evaluation of the [g]rievant's work . . . was not 'fair and objective'." Id. at 2. The Arbitrator rejected the Union's claim that the supervisor's failure to take the grievant's previous evaluation into consideration caused the evaluation to be "unfair and unobjective." Id. The Arbitrator also found that Article 40, section 4 of the parties' agreement, which addresses the procedure for making written records of counseling sessions, did not preclude the supervisor's "oral discussions with the [g]rievant concerning [her work] performance . . . ." Id. Rather, the Arbitrator found that the "monthly oral discussions of the [g]rievant's performance . . . were a permissible way . . . to communicate a plan that would satisfy . . . objectives [4 and 5]" of Article 18, section 2(b).(2) Id. at 2-3.

The Arbitrator concluded that "[u]nless an employee's performance is 'unsatisfactory', recorded memoranda of the discussions do not seem to be mandatory." Id. at 3. According to the Arbitrator, the change in the grievant's appraisal rating was explained by her "failure to implement adequately . . . verbal guidelines [regarding] . . . creating and using a [f]ollow-[u]p [l]og." Id. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

As a preliminary matter, the Union claims that it would not have invoked the expedited arbitration process, but would have "opted to have the matter heard in a 'full-blown' arbitration proceeding[]" if it had been aware that the Agency would raise contract interpretation issues at the hearing. Exceptions at 3.(3)

On the merits, the Union contends that the award is contrary to 5 U.S.C. § 4302.(4) The Union argues that, because 5 U.S.C. § 7103 includes nonappropriated fund instrumentalities in the definition of 'agency', the Agency is required by 5 U.S.C. § 4302 to "establish a procedure which permits for accurate evaluation of job performance on the basis of objective criteria." Exceptions at 5. According to the Union, by "overlook[ing] management's obligation[s] under the contract," the Arbitrator did not review the grievance "consistent with [5 U.S.C. § 4302] . . . ." Id. at 7 (emphasis in original).

The Union also contends that "[t]he award is deficient as based on gross error, but for which a different result would have been reached and does not draw its essence from the collective bargaining agreement." Id. The Union alleges that the Arbitrator erred in finding that the Agency's actions did not violate Article 40, section 4 and Article 18, section 2(b) of the parties' agreement. According to the Union,

Article 40, section 4 requires that a record of the counseling sessions set forth in Article 40, section 3, or "at least [a] reference to them, must be reduced to writing and signed by the employee." Id. at 10.(5) In this connection, the Union contends that the grievant's record notes only one discussion between the grievant and her supervisor regarding deficiencies in grievant's work performance, and that this discussion did not satisfy the objectives of Article 18.

B. Agency

The Agency asserts that its employees are not covered by 5 U.S.C. § 4302 for two reasons. First, the Agency contends that, under 5 U.S.C. § 2105(c), "[a]n employee paid from non-appropriated funds of the Army and Air Force Exchange Service . . . is deemed not an employee for the purpose of . . . laws administered by the Office of Personnel Management [OPM] . . . ." Opposition at 5-6 (emphasis in original).(6) The Agency notes that 5 U.S.C. § 4302 is a law administered by OPM. Second, the Agency contends that the Army and Air Force Exchange Service, is not an executive agency and, therefore, is not included within the definition of 'agency' in 5 U.S.C. § 4302. In addition, the Agency contends that the Union's allegation that the award does not draw its essence from the collective bargaining agreement is merely an attempt to relitigate the merits of the grievance before the Authority and does not demonstrate that the award is deficient.

IV. Analysis and Conclusions

A. 5 U.S.C. § 4302 Is Not Applicable in This Case

The grievant in this case is employed by the Army and Air Force Exchange Service (AAFES). "The AAFES is a nonappropriated fund instrumentality [NAFI] of the United States, a term denoting an activity whose monies are not received by congressional appropriation, and whose employees are paid primarily from income generated by the activity itself." Perez v. Army and Air Force Exchange Service, 680 F.2d 779, 780-81 (D.C. Cir. 1982)(footnotes omitted). Although it is undisputed that employees of AAFES, including the grievant in this case, are Federal employees, "it was never the intent of Congress that NAFI employees be entitled to the same levels of employment protection as other federal employees." McAuliffe v. Rice, 966 F.2d 979, 980 (5th Cir. 1992). In fact, Congress specifically provided in 5 U.S.C. § 2105(c) that such NAFI employees are excluded from coverage of laws (other than subchapter IV of chapter 53 and sections 5550 and 7204 of Title 5 U.S. Code) administered by OPM. See note 6. Where Congress has made NAFI employees subject to laws applicable to other Federal employees, it has done so "by expressly including [NAFI employees] within the coverage of specific laws." Perez v. AAFES, 680 F.2d at 787. See, for example, 5 U.S.C. §§ 3326(b), 5531(2), 5342(a)(2)(B), 7103(a)(3) and 29 U.S.C. § 203(e)(2)(iv).

In this case, the Union claims that the grievant, a NAFI employee, is covered by the performance appraisal system which Federal agencies are required to establish under 5 U.S.C. §§ 4301-4305. As noted previously, agencies are obligated under this system to undertake various actions in order to provide employees with performance appraisals which will be used as a basis for training, rewarding, reassigning, promoting, reducing in rank and removing Federal employees. See note 4. However, 5 U.S.C. §§4301-4305 are administered by OPM. 5 U.S.C. § 4305. As such, NAFI employees are excluded from coverage of 5 U.S.C. §§ 4301-4305 by operation of 5 U.S.C. § 2105(c) unless Congress otherwise expressly included them. In this respect, we note that the definition of employee set forth in 5 U.S.C. § 4301(2) does not expressly include NAFI employees. Accordingly, we conclude that the grievant is not covered by 5 U.S.C. § 4302 and we will deny the Union's exception that the award is inconsistent with this section.(7) See American Federation of Government Employees, AFL-CIO, Local 987 and Headquarters, Warner Robins Air Force Logistics Command, Robins Air Force Base, Georgia, 8 FLRA 667, 676 (1982).

B. The Award Is Not Based on a Nonfact

We construe the Union's claim that the Arbitrator's award is "deficient as based on gross error, but for which a different result would have been reached[,]" as an assertion that the award is based on a nonfact. Exceptions at 7. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 46 FLRA 615, 619 (1992).

The Union did not specifically refer to any nonfact relied on by the Arbitrator in rendering the award. Rather, the Union contends that the Arbitrator "patently disregard[ed] the clear language of . . . [A]rticle [40]" in finding that "[i]t is consistent with Article 40[,] [section] 4 for a supervisor to determine that a written record of some counseling sessions [was] not needed." Exceptions at 9. This allegation constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement and does not demonstrate that the award is based on a nonfact. Moreover, the Union did not provide a complete copy of Article 40. See note 5. Accordingly, we will deny this exception.

C. The Award Draws Its Essence from the Agreement