49:0013(3)AR - - AFGE, Council 236 and GSA, Region 9 - - 1994 FLRAdec AR - - v49 p13
[ v49 p13 ]
The decision of the Authority follows:
49 FLRA No. 3
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
GENERAL SERVICES ADMINISTRATION
FEBRUARY 4, 1994
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 Marsha M. Saylor 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 did not file an opposition to the Union's exceptions.
The Arbitrator determined that the grievant's performance was at an unacceptable level and ordered the Agency to provide the grievant with a performance improvement plan (PIP). For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance contesting the grievant's semi-annual performance rating for critical elements 1 and 4. When the grievance was not resolved, it was submitted to arbitration. The parties stipulated the issue as follows:
(1) Was the Grievant's performance from March 1-September 1, 1992 at an unacceptable level?
(2) If so, was the Grievant entitled to a Performance Improvement Plan (PIP) as a result of this review?
(3) If so[,] what shall be the remedy?
Award at 1.
At the outset, the Arbitrator rejected the Union's claim that a prior arbitration award, which cancelled a previous PIP given to the grievant, precluded the Agency from giving the grievant the disputed semi-annual rating. Turning to the grievant's performance under critical element 1, the Arbitrator found that the Agency had failed to sustain its claim that the grievant did not satisfactorily complete all five of his work assignments. The Arbitrator determined that one of the assignments had not been given to the grievant during the rating period and that there was insufficient evidence to show that another assignment was deficient. Nevertheless, the Arbitrator concluded that, as the grievant's work contained "three significant deficiencies[,]" the grievant's "performance was unacceptable in [c]ritical [e]lement 1 . . . ." Id. at 10. With regard to critical element 4, the Arbitrator found that, although the Agency failed to sustain one claim of deficient performance, the four remaining deficiencies "equate[d] to unacceptable performance in this element." Id. at 15.
As her award, the Arbitrator found that the grievant's performance was at an unacceptable level and ordered the Agency to provide the grievant with a PIP within 90 days of her award.
The Union claims that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute because the Arbitrator altered the content of the Agency's established performance standards.(*) The Union states that, under the applicable standards and consistent with the Arbitrator's findings regarding the grievant's performance deficiencies, the grievant should have been rated fully successful in element 1 and marginally successful in element 4.
The Union also claims that "the central fact underlying the award is clearly erroneous, in both Critical Elements 1 and 4 [because] the number of significant deficiencies did not make the semiannual performance unacceptable based o