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














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.

III. Exceptions

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 on the performance plan." Exceptions at 4. In particular, the Union states that the Arbitrator's determination that the grievant's three deficiencies for critical element 1, and four deficiencies in critical element 4, resulted in unacceptable performance is based on "an erroneous conclusion that the grievant would have made additional significant deficiencies before the end of the rating period." Id. The Union contends that nothing in the grievant's performance plan either permits such a conclusion or enables the Arbitrator to prorate the number of deficiencies for a 6-month period. Finally, the Union asserts that the award "violates the doctrine of stare decisis" because the Arbitrator did not consider the Agency's non-compliance with a prior arbitration award which, according to the Union, ordered the Agency to provide the grievant with training in his job duties and critical elements. Id. at 3.

IV. Analysis and Conclusions

We reject the Union's claim that the Arbitrator altered the Agency's established performance standards by failing to correctly apply the numerical error rate of the Agency's established standards to the grievant's work. Specifically, the Union claims that because the standards express an error rate in terms of full rating year, and the grievant's errors occurred during only a 6-month period and did not exceed the allowable yearly rate, the Arbitrator's finding of unsatisfactory performance is inconsistent with the standards.

The Union has cited no law, regulation or provision of the parties' collective bargaining agreement to support its claim that the Arbitrator misapplied the standards. In particular, nothing in the record indicates that any instructions or guidelines address how the yearly error rate established by the standards is to be applied to performance periods of less than a year. In the absence of any existing guidance on this matter, we conclude that the Arbitrator's finding that the grievant's error rate for the 6-month period resulted in an unacceptable performance rating does not constitute an impermissible application of the existing standards.

We also reject the Union's assertion that the Arbitrator's finding of unsatisfactory performance was based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the 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 Veterans Affairs, Regional Office, Chicago, Illinois and American Federation of Government Employees, National Veterans Administration Council, Local 1765, 38 FLRA 356, 359 (1990).

The Union asserts that the Arbitrator's determination that the grievant's performance deficiencies made over a 6-month period resulted in unsatisfactory performance is based on a nonfact. Specifically, the Union argues that, because the number of the grievant's performance deficiencies during the 6-month period did not exceed the allowable yearly error rate, the Arbitrator's award is based either on the "erroneous conclusion that the grievant would have made additional significant deficiencies before the end of the rating period[]" or on the impermissible conclusion that the grievant's performance standards allowed the number of performance deficiencies to be prorated for a 6-month period. Exceptions at 4.

We are not persuaded that the award is based on a nonfact. In our view, the exception constitutes mere disagreement with the Arbitrator's application of the standards to performance in a 6-month period, rather than with a finding of fact. Further, nothing in the award indicates that the Arbitrator concluded that the gri