49:1217(116)AR - - HUD, Denver Regional Office, Denver, CO and AFGE, Local 3972 - - 1994 FLRAdec AR - - v49 p1217



[ v49 p1217 ]
49:1217(116)AR
The decision of the Authority follows:


49 FLRA No. 116

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

DENVER REGIONAL OFFICE

DENVER, COLORADO

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3972

(Union)

0-AR-2554

_____

DECISION

June 9, 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 Joseph Lazar filed by the Agency 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 Union did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance regarding the grievant's performance rating and the Agency's denial of the grievant's career ladder promotion. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On October 1, 1990, the Agency promoted the grievant to the position of Supervisory Program Technician, GS-6. The grievant was eligible for a career ladder promotion each October until he reached the GS-9 level. The grievant's performance was to be appraised annually, based on the Agency's appraisal cycle of October 1 through September 30.

On April 5, 1991, the Agency issued the grievant an interim performance rating for the period from October 1, 1990, to April 5, 1991, with a summary rating of "unacceptable." The Agency also reassigned the grievant to the position of Program Technician, GS-6. However, the grievant remained eligible for a career ladder promotion each October.

On September 30, 1991, the Agency issued the grievant a performance appraisal for the period from April 8, 1991, to September 30, 1991, with a summary rating of "fully successful." The appraisal was signed by the grievant's first-line supervisor and the reviewing official, and was transmitted to the Agency's personnel office after it was given to the grievant.

On October 2, 1991, the Agency notified the grievant that he would not be recommended for a career ladder promotion. On November 14, 1991, the grievant filed a grievance contesting the Agency's denial of the promotion.

On November 22, 1991, on direction from the Agency's personnel office, the September appraisal "had added to it the substance of the interim rating," and the grievant's September rating "was changed to become '[m]arginally [s]uccessful.'" Award at 4. The grievant filed a second grievance.

The grievances were unresolved and were submitted to arbitration. The Arbitrator stated the issues before him as follows:

1. Was it proper for the Agency to issue the November 22, 1991, performance rating which combined the [g]rievant's April 5, 1991, [i]nterim [r]ating of 'unacceptable' and the [g]rievant's September 30, 1991, rating of "[f]ully [s]uccessful"[?]

2. Was it proper for the Agency to deny the [g]rievant a career ladder promotion to a GS-7 in October 1991?

Id. at 1-2.

The Arbitrator first considered whether it was "proper for the Agency to combine the [g]rievant's performance rating of April 5, 1991, an interim rating, with the [g]rievant's performance rating of September 30, 1991, an annual rating[.]" Id. at 2. The Arbitrator found that under Office of Personnel Management (OPM) regulations, the Agency's performance appraisal plan, and the parties' collective bargaining agreement, the Agency was required to include an employee's interim rating in determining that employee's annual performance rating. However, the Arbitrator further found that the Agency did not "combine the interim rating with the annual rating of record" in "making out the [g]rievant's annual performance rating in October" because the appraisal period set forth in the September appraisal was limited to the period from April 8, 1991, through September 30, 1991. Id. at 3. The Arbitrator stated that whether the interim rating was taken into account in some manner in determining the written September rating was "conjectural on the evidence of record[,]" and found that "the document speaks for itself and does not incorporate the period of the interim rating." Id.

Noting that the timing of the grievant's ratings "is a matter of considerable importance[,]" the Arbitrator stated that under the Agency's performance appraisal plan, delayed appraisals must be made in a manner that is consistent with published standards and regulations to avoid arbitrariness, reprisals, intimidations, and favoritism. Id. at 4. The Arbitrator found that nothing in the record before him demonstrated that Agency officials were authorized or required to modify the grievant's official annual appraisal in the circumstances of this case. Additionally, the Arbitrator stated that Article 37, Section 37.05 of the parties' collective bargaining agreement provides that a performance appraisal rating is considered official when it is: (1) signed by the rating official and/or the reviewing official; (2) signed by the employee or held by the employee for a 3-day comment period without being signed; and (3) received by the personnel office. The Arbitrator found that, "[g]iven the circumstances of this case, the [a]greement was violated when the annual rating was changed on November 22, 199[1]." Id. at 5.

The Arbitrator also considered the contention of the Agency's witnesses that the grievant had not demonstrated the ability to perform the duties of the next higher grade to the satisfaction of his supervisor. The Arbitrator found that the witnesses' testimony was without documentary foundation and was not sufficiently persuasive to support the Agency's determination that the grievant had not demonstrated the ability to perform the duties of the next higher grade and was not entitled to a career ladder promotion.

The Arbitrator determined that, in the circumstances of this case, the Agency violated the parties' agreement when it changed the grievant's annual rating and denied him a career ladder promotion. The Arbitrator directed the Agency to grant the grievant a promotion to the GS-7 level with backpay, including appropriate interest, retroactive to the beginning of the first pay period following October 1, 1991.

III. Exceptions

The Agency contends that the award is deficient because it is contrary to 5 C.F.R. § 430.205(a).(1) According to the Agency, that Government-wide regulation requires agencies to "issue a summary (or interim) rating to an employee who changes positions during the appraisal period" and "to take into consideration an employee's interim rating and any other ratings given throughout the appraisal period when determining that employee's annual rating." Exceptions at 5. The Agency maintains that the grievant's September rating was "flawed" because it only rated his performance from April 8, 1991, through September 30, 1991, rather than the entire appraisal cycle from October 1, 1990, through September 30, 1991. Id. The Agency asserts that it corrected the error by issuing to the grievant the November rating, and that the Arbitrator erred when he held that the Agency improperly issued the November rating to the grievant. In sum, the Agency argues that the award is deficient because it is contrary to the requirement in the cited regulation that the annual rating incorporate the interim rating.

The Agency also contends that the award is deficient because it is based on two nonfacts. First, according to the Agency, the Arbitrator erred by characterizing the grievant's September rating as an "annual rating." Id. at 7. The Agency asserts that the grievant's September rating was not for the entire year, but covered only the period between April 8, 1991, and September 30, 1991. The Agency asserts that the Arbitrator's reliance on this nonfact "is crucial because the [g]rievant's actual annual performance rating of '[m]arginally [s]uccessful" makes a career ladder promotion 'unlawful.'" Id. at 8. Second, the Agency contends that the award is based on the nonfact that the Agency changed the grievant's September performance rating when the Agency issued the November rating. The Agency maintains that the November rating did not change the grievant's earlier rating because the grievant's September rating "remained intact in his November 1991, annual rating." Id.

IV. Analysis and Conclusions

A. The Award Is Not Inconsistent with 5 C.F.R. § 430.205(a)

We reject the Agency's argument that the award is contrary to 5 C.F.R. § 430.205(a). By its terms, 5 C.F.R. § 430.205(a) provides that agency performance appraisal systems must require the preparation of "a summary rating when an employee changes positions during the appraisal period" and "must describe how these ratings and any other ratings given throughout the appraisal period will be taken into consideration in deriving the next rating of record." Thus, the regulation sets forth certain requirements with which agency performance appraisal systems must comply. However, nothing in 5 C.F.R. § 430.205(a) prescribes the specific manner or form in which an agency must take into consideration an interim rating that is given to an employee during the appraisal period in deriving an employee's annual rating of record. Therefore, under 5 C.F.R. § 430.205(a), an agency is not required to assign any particular weight to an interim appraisal in deriving an employee's annual rating of record.

Because we find that 5 C.F.R. § 430.205(a) requires only that performance appraisal systems provide for the preparation of interim ratings, but does not specify the manner in which those ratings are to be taken into consideration in deriving employees' annual ratings, we find that the Agency has failed to demonstrate that, under 5 C.F.R. § 430.205(a), it was required to issue the November rating. Moreover, because we find that 5 C.F.R. § 430.205(a) does not mandate that an agency assign any particular weight to an interim rating in deriving an employee's annual rating of record, we also find that the Arbitrator's interpretation of the parties' agreement to preclude the Agency from changing that annual rating after it becomes the official rating is not contrary to 5 C.F.R. § 430.205(a). Accordingly, we find that the Agency has failed to demonstrate that the award is inconsistent with 5 C.F.R. § 430.205(a) and we will deny the Agency's exception.(2)

B. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of Defense, Dependents Schools and Overseas Education Association, 48 FLRA 1379, 1384 (1994).

We conclude that the Agency has failed to demonstrate that the award is deficient on this ground. The Agency asserts that the evidence shows that the grievant's September appraisal was not his annual performance appraisal. We find, however, that the Agency has not demonstrated that the Arbitrator's finding that the September appraisal was the grievant's rating of record is a nonfact. In our view, the Agency's argument constitutes nothing more than disagreement with the Arbitrator's finding that, under the terms of the parties' collective bargaining agreement, the September appraisal, rather than the November appraisal, constituted the grievant's official rating. Specifically, the Agency has not demonstrated that, under law, regulation, or the parties' agreement, in order for an appraisal to be the official rating of record, the appraisal must cover the entire appraisal year.

An arbitrator's interpretation of a contract provision is not a fact that can be challenged as a nonfact. See, for example, U.S. Department of Defense, Antilles Consolidated School System, Fort Buchanan, Puerto Rico and Antilles Consolidated Education Association, 49 FLRA 705, 710 (1994). Consequently, the Agency has not demonstrated that the Arbitrator's award is based on a nonfact. Rather, the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement and provides no basis for finding the award deficient. Id.

We also reject the Agency's contention that the award is based on the nonfact that the Agency changed the grievant's September performance rating when the Agency issued the November rating. The Agency claims that the grievant's November rating did not constitute a change in his September rating but, rather, constitutes a compilation of his prior ratings in which his September rating remained "intact." Exceptions at 8.

The Agency has not demonstrated that the Arbitrator's finding that the grievant's September rating was changed when the Agency issued the November rating is the central fact underlying the award or that it is clearly erroneous. Rather, we find that the Agency's contention merely constitutes disagreement with the Arbitrator's conclusion that the parties' collective bargaining agreement precluded the Agency from revising the official rating of record once that rating had become final. Consequently, as noted above, because an arbitrator's interpretation of a contract is not challengeable as a nonfact, we find that the Agency has not demonstrated that the Arbitrator's award is based on a nonfact. Mere disagreement with the Arbitrator's interpretation of the parties' agreement provides no basis for finding the award deficient. Id.

Accordingly, we will deny the Agency's exception.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. 5 C.F.R. § 430.205(a) provides:

(a) Appraisal period. Each agency appraisal system shall establish an official appraisal period for which a rating of record shall be prepared. Employees shall generally be given a rating of record on an annual basis. Agencies may provide for longer appraisal periods when duties and responsibilities of a position or the tour of duty of a position so warrant. Systems shall provide for preparing a summary rating when an employee changes positions during the appraisal period, if the employee has served for the minimum appraisal period in the position from which he/she has changed; agency Performance Management Plans must describe how these ratings and any other ratings given throughout the appraisal period will be taken into consideration in deriving the next rating of record