50:0096(18)AR - - Air Force, Sacramento Air Logistics Center, McClellan AFB, CA and AFGE, Local 1857 - - 1995 FLRAdec AR - - v50 p96
[ v50 p96 ]
The decision of the Authority follows:
50 FLRA No. 18
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
SACRAMENTO AIR LOGISTICS CENTER
MCCLELLAN AIR FORCE BASE, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 6, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Ronald Hoh 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 challenging a performance appraisal.
For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a Union representative, is appraised under an individual performance plan that consists of nine performance elements. The plan provides that the employee will meet the requirements of eight of these elements if the employee has no major infractions, defects or complaints during the rating period and no more than 2-4 documented minor infractions, defects or complaints.
The grievant received a rating of "fully successful" on all nine individual performance elements for the appraisal period ending June 30, 1993. His total score was 45, which fell in the mid-range of possible ratings. The grievant complained about the rating. After acknowledging that the grievant had spent a considerable portion of the rating period performing Union-related activities, the parties agreed to resolve the complaint by reappraising the grievant for a different rating period. The rating for this new period was higher than the initial rating on all the individual performance elements and included a rating of "above fully successful" on four of the nine elements. The grievant attained a total score of 58.
The grievant filed a grievance disputing the new rating. When the grievance was not resolved, it was submitted to arbitration, under an expedited arbitration procedure, on the following stipulated issue:
1. Was the grievant appropriately rated in accordance with Article 15 of the [Master Labor Agreement] and applicable regulations?
2. If not, what shall the remedy be?
Award at 1.
Before the Arbitrator, the Agency claimed that the grievant had difficulty adjusting to his regular duties and learning new work procedures after performing his Union activities. The Agency defended the new appraisal on the basis of the grievant's failure to complete certain work assignments on time or at all. The grievant disputed these assertions.
As an initial matter, the Arbitrator found that the Union had the burden of proof to establish that the grievant's new rating violated the parties' collective bargaining agreement, law, and regulations. The Arbitrator determined that the grievant was "appropriately rated in accordance with Article 15 of the parties' Master Labor Agreement (MLA) and applicable regulations."(1) Id. at 5. In reaching this conclusion, the Arbitrator rejected the Union's argument that the grievant should have received a rating above the "fully successful" level on all the performance elements because the Agency had not documented any infractions against him. The Arbitrator noted that the performance plan provides for a rating of "fully successful" on a performance element when there are "no more than two minor defects or infractions" documented against the grievant. Id. at 4 (emphasis in original). The Arbitrator found that it was proper to rate an employee "fully successful" on a performance element even when there are no infractions documented against that employee.
The Arbitrator also rejected the Union's argument that the Agency had not measured the grievant's performance against the elements in his performance plan. The Arbitrator found no evidence that the grievant's rating was based on anything other than the Agency's view of his work performance. The Arbitrator further found a "complete absence of evidence" that the Agency was arbitrary or capricious in determining the grievant's rating levels and no evidence that the Agency was motivated by ill will, bias, or discrimination. Id. at 5.
Accordingly, the Arbitrator denied the grievance.
A. Union's Contentions
The Union contends that the Agency improperly relied on the grievant's Union activities in determining his new rating. The Union notes that section 7102 of the Statute protects the right of employees to participate in a labor organization. The Union also argues that the Arbitrator ignored violations of various provisions of Article 15 of the parties' agreement relating to the application of the performance plan in a fair and valid manner, assisting the grievant in maximizing his performance, and applying the performance standards against the performance elements.
Attached to the Union's exceptions are three unsworn statements prepared by two witnesses and one observer at the arbitration hearing purporting to set forth facts presented in that proceeding. The statements discuss the testimony with respect to the grievant's performance.
B. Agency's Opposition
As a preliminary matter, the Agency requests that the Authority not consider the three statements attached to the Union's exceptions because they were not presented to the Arbitrator. In support, the Agency cites section 2429.5 of the Authority's Rules and Regulations.(2) As to the merits of the Union's exceptions, the Agency disputes the Union's recitation of the facts and legal conclusions and its contention that the Arbitrator ignored violations of various provisions of Article 15 of the parties' agreement.
IV. Analysis and Conclusions
A. The Union's Statements Are Not Precluded by Section 2429.5 of the Authority's Regulations
We reject the Agency's request that the Authority not consider the three disputed statements submitted in support of the exceptions under section 2429.5 of our Rules and Regulations. Insofar as the statements seek to reflect what transpired at the arbitration hearing, and given the fact that the filing of briefs was not permitted under the parties' contractual expedited arbitration procedure, the statements could not have been presented to the Arbitrator. Therefore, section 2429.5 does not preclude consideration of the Union's statements. Compare, for example, U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 142 (1990) (affidavits not presented to the arbitrator were not considered by the Authority). However, where, as here, parties have elected to use an expedited arbitration procedure that lacks a formal transcript of the arbitration hearing, we will not permit the parties' submissions to the Authority to substitute for a formal record of the proceeding. Accordingly, we consider them only as arguments in support of the Union's exceptions.
B. The Award Is Not Contrary to Section 7102 of the Statute
We construe the Union's contention that the Agency improperly relied on the grievant's Union activities as an assertion that the award is contrary to section 7102 of the Statute. That section guarantees employees the right to engage in activities on behalf of an exclusive representative without fear of penalty or reprisal.
The Union has not demonstrated that the award is contrary to section 7102. The Arbitrator found no evidence that the grievant's rating was based on anything other than his work performance. The Arbitrator found that the parties "understood" that the grievant could not be rated on the performance of Union activities and that they had agreed that the new appraisal would be conducted for a period of time in which the grievant performed his regular duties. Award at 2. Consistent with these findings, which have not been shown to be erroneous, the exception provides no basis for finding the award deficient. See, for example, 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, 1222 (1990).
C. The Award Draws Its Essence from the Agreement
We construe the Union's contention that the Arbitrator ignored violations of various provisions of Article 15 of the parties' collective bargaining agreement as an assertion that the award fails to draw its essence from the agreement. To demonstrate this, a party must show 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 wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 42 FLRA 1186, 1193 (1991).
The Union has not demonstrated that the award fails to draw its essence from the agreement under any of the tests described above. In this case, the Arbitrator referenced, interpreted, and applied various provisions of Article 15 to find that the grievant had been appropriately appraised. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's interpretation of the agreement and, as such, does not provide a basis for finding the award deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 2369, 49 FLRA 824, 826-27 (1994).
The Union's exceptions are denied.
Section 15.02 of Article 15 provides, in pertinent part, as follows:
e. Performance standards are used to measure the performance of the employee against the elements in the performance plan. A performance standard recognizes the degree of difficulty and reflects the consequences of the work outcome to the organization. The performance standard for each performance element must be defined in measurable terms and be applied in a fair and valid manner.
f. . . .Management will make a sincere effort to assist an employee to maximize their job performance in accordance with their performance plan.
. . . .
h. The employee's annual rating will be the result of the application of the standards against elements as described above. The annual rating will be in writing with a copy provided to the employee. Performance elements rated as "Did Not Meet" or "Exceeded" will be justified by a brief narrative description.
(If blank, the decision does not have footnotes.)
1. The relevant provisions of Article 15 are set forth in the Appendix to this decision.
2. Section 2429.5 of the Authority's Regulations provides as follows:
The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the Regional Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority may, however, take official notice of such matters as would be proper