49:0828(78)AR - - Air Force Logistics Command, OK City Air Logistics Center, Tinker AFB, OK and AFGE, Local 916 - - 1994 FLRAdec AR - - v49 p828
[ v49 p828 ]
The decision of the Authority follows:
49 FLRA No. 78
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 22, 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 Don J. Harr 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 denied a grievance challenging the grievant's annual performance appraisal. For the following reasons, we conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
On July 10, 1992, the grievant, a civilian employee, received a summary rating of "Excellent" on his annual performance appraisal. On July 21, 1993, the grievant received a summary rating of "Fully Successful" on his performance appraisal. The grievant filed a grievance claiming that he should have received a rating of "Excellent" on the later appraisal. The grievance was not resolved and was submitted to arbitration.
The parties stipulated the issue before the Arbitrator as "[d]id management violate law, regulation or a provision of the parties' [collective bargaining agreement] in appraising [the] grievant?" Id. The stipulation also provided that if the Arbitrator found such a violation, he could direct the Agency to appraise the grievant's performance at a certain level if he could make that determination based on the record, and that he should direct the Agency to reevaluate the grievant if he was unable to make that determination.
According to the Arbitrator, on March 13, 1991, the grievant's position was reclassified "from a WG[Wage-Grade]-4102-10, Painter, to a WG-3806-10, Sheet Metal Mechanic[.]" Id. While there was evidence that the grievant's overall performance rating had declined from 1992 to 1993, the Arbitrator noted that the Agency contended that this fact was immaterial because performance for each year is measured by that year's "observed work behavior." Id. The Arbitrator also found that the grievant had not received a mid-term appraisal during the disputed appraisal period and that the grievant's former supervisor retired without providing him with a close-out appraisal.
Next, the Arbitrator noted that the Agency's Aircraft Overhaul Supervisor, the rater for the grievant's disputed performance appraisal, testified that he had reviewed the grievant's performance appraisal for the period in question. The Arbitrator found merit in the supervisor's explanation for the drop in the grievant's performance rating. In this regard, the Arbitrator accepted the rater's explanation that the grievant's declining performance was attributable to the fact that the grievant's "painting skills were good, however, his sheet metal skills were not." Id. at 3. According to this witness, during the 1992 appraisal period the grievant "was performing only painting work." Id. On this basis, the Arbitrator concluded that, because the grievant was now working in a different position "classified as a Sheet Metal Mechanic," the grievant's sheet metal skills would have to improve before the grievant could receive the same rating he received as a Painter. Id. In sum, the Arbitrator found that the Union had not demonstrated that the Agency, in appraising the grievant, violated any law, regulation or provision of the parties' agreement. Accordingly, as his award, the Arbitrator denied the grievance.
The Union argues that the award is deficient under section 7122 of the Statute because it violates law, Government-wide regulations, an agency regulation, and the parties' agreement. The Union maintains, without explanation, that the award is contrary to 5 U.S.C. § 4303. The Union also maintains that the award violates 5 C.F.R. §§ 430.205(a) and 430.206(f) and Air Force Regulation 40-452, 2-6. In support, the Union argues that the Arbitrator found that the Union had failed to demonstrate any violation despite the fact that the grievant had not received a close-out appraisal when the grievant's immediate supervisor retired. The Union contends that management's failure to provide a close-out appraisal for the grievant, when his former supervisor retired, violated the cited regulations. The Union also argues that the award contravenes 5 C.F.R. § 430.205(e) and Article 15, Section 15.02f of the parties' agreement.(1) In this regard, the Union asserts that the Arbitrator did not find a violation of either the cited regulation or the parties' contract even though he found the grievant had not received a mid-term appraisal. The Union contends that the award violates the regulation and the parties' agreement because they require a mid-term appraisal and the grievant never received one.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
The Arbitrator found that the grievant's decline in performance for the disputed appraisal period as a Sheet Metal Mechanic could be attributed solely to the fact that the grievant's painting skills were better than his skills as a sheet metal mechanic. In our view, implicit in this finding is a conclusion that, despite the Agency's failure to provide the grievant with a close-out appraisal or a mid-term appraisal, the weight of the evidence was not sufficient to persuade the Arbitrator that management, in appraising the grievant, had violated any law, regulation or the parties' agreement.
As to the Union's specific contentions, we reject the Union's claim that the award is contrary to 5 U.S.C. § 4303. In this regard, we note that 5 U.S.C. § 4303 is entitled "Actions based on unacceptable performance[.]" The Union does not explain, and it is not apparent from the record before us, how this provision of law, which relates solely to reductions in grade or removal for unacceptable performance, is applicable to this case.
The Union also has not demonstrated how the award conflicts with 5 C.F.R. §§ 430.205(a) and 430.206(f) or Air Force Regulation 40-452, 2-6. In this regard, section 430.205(a) provides that appraisal systems "shall provide for preparing a summary rating when an employee changes positions during the appraisal period," but does not specifically refer to providing a close-out appraisal when an employee's supervisor retires or leaves, as was the situation in this case. Section 430.206(f) provides for a transfer of an employee's summary performance rating "[i]f an employee moves to a new agency or new organization in the employing agency." This regulation also does not provide for a close-out appraisal upon the retirement of a supervisor. Because the Union has not established that the award contravenes the cited regulations, we conclude that the Union's contention in this regard constitutes an attempt to relitigate this matter before the Authority and provides no support for its exception that the award is contrary to the cited regulations and no basis for finding the award deficient. See, for example, Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 240, 245 (1987); see also U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 35 FLRA 1218, 1223 (1990) (unsubstantiated contention that award violated regulations provided no basis for finding award deficient).
In addition, the Union argues that the award contravenes an Air Force regulation. However, the Union has not provided us with a copy of this regulation or cited the portion of this regulation with which the award conflicts. Accordingly, the Union has not established that the award conflicts with this Agency regulation. In this regard, we note that section 2425.2(d) of the Authority's Rules and Regulations requires that an exception be a "self-contained" document that includes copies of "pertinent documents." See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1142 (1992).
We also reject the Union's contention that the award violates 5 C.F.R. § 430.205(e)(2) and Article 15, Section 15.02f of the parties' agreement. In regard to the regulation, the Union argues that the Arbitrator did not find a violation of this regulation despite his finding that the grievant had not received a mid-term appraisal. We note, however, that this regulation pertinently provides that "[a] progress review shall be held for each employee at least once during the appraisal period." It does not mandate a mid-term appraisal. This regulation also provides that employees will, at a minimum, be informed of their level of performance in relation to the performance elements and standards established for their positions. However, the Union does not assert that the grievant was never informed of his level of performance in relation to the standards and elements established for his position. Moreover, we note that the Arbitrator found that the decline in the grievant's performance rating could be attributed to his having better painting skills than sheet metal mechanic skills. Therefore, even assuming that the Agency violated the second portion of this regulation, the Union has not established that the Agency would have rated the grievant any differently if it had met this procedural obligation. In this situation, we conclude that the Union has not established that the award conflicts with this particular regulation or that the award is otherwise deficient in this regard. See, for example, U.S. Department of the Army, Headquarters, Army Garrison, Fort Ritchie, Maryland and National Federation of Federal Employees, Local 115, 43 FLRA 968, 972 (1992).
Finally, we also reject the Union's contention that the award violates Article 15, Section 15.02f of the parties' agreement. We construe the Union's assertion as a contention that the award fails to draw its essence from the agreement. To establish that an award fails to draw its essence from an agreement, a party 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 wordi