National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Virginia

[ v55 p789 ]

55 FLRA No. 134

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-45
(Union)

and

U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
LANGLEY AIR FORCE BASE, VIRGINIA
(Agency)

0-AR-3113

_____

DECISION

September 8, 1999

_____

Before the Authority: Phyllis N. Segal, Chair, Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I.      Statement of the Case

      This matter is before the Authority on exceptions to an original award and amended award of Arbitrator George E. Marshall, Jr. filed by the Union and the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. The Union filed an opposition to the Agency's exceptions.

      In the original award, the Arbitrator sustained, in part, and denied, in part, a grievance challenging the appraisal of a grievant. The Arbitrator concluded that the Agency had applied its performance appraisal system in violation of the collective bargaining agreement, but had rated the grievant properly. However, the Arbitrator did not provide a remedy for the violation of the agreement.

      Subsequently, in an amended award, the Arbitrator provided a remedy. The Arbitrator ordered the Agency to comply with the collective bargaining by discussing and preparing with the grievant and other sales store checkers performance plans to be used on an objective basis for overall summary ratings of "excellent" and "outstanding." The Arbitrator required that this discussion occur with the assistance of the Union.

      For the following reasons, we conclude that the Union's and the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II.     Background

      The grievant is a sales store checker at Langley Air Force Base Commissary. The grievant's performance plan contains eight critical job elements and two noncritical job elements. There are three rating levels for each job element: did not meet, met, and exceeded. There are also five rating levels for an overall summary rating: unacceptable, minimally acceptable, fully successful, excellent and outstanding. See Original Award at 2. There are written standards established for the "met" level only. See id.

      In order to receive a summary rating of "excellent", the grievant must receive a rating of "exceeded" in more than half of the critical job elements and "met" in all other elements. Id. In order to receive a summary rating of "outstanding," the grievant must receive a rating of "exceeded" in all of the critical job elements.

      For the period of July 1, 1996, through June 30, 1997, the grievant's performance was rated as "exceeded" in two critical job elements and as "met" in the other six critical job elements, resulting in a summary rating of "fully successful." The Union filed a grievance on behalf of the grievant challenging this appraisal. The grievance was submitted to arbitration. The parties stipulated to the following issues:

1.      Did the Agency violate law, regulation or Article 41 of the collective bargaining agreement in assessing and rating the performance of the Grievant for the time period of July 1, 1996, through June 30, 1997? [n1] 
2.      If so, what is the remedy?

Id. [ v55 p790 ]

      Before the Arbitrator, the Union maintained that the grievant's supervisor failed to rate him fairly and objectively as required by Article 41 of the collective bargaining agreement, and that the grievant should have received a summary rating of "excellent." The Union also maintained that it was the Agency's policy for supervisors to meet with employees at the beginning of each appraisal cycle to discuss the performance standards on which the employee's work would be evaluated. See id. at 4. The Union added that it was the Agency's policy for supervisors to encourage employees to participate in identifying performance elements and establishing performance standards. See id.

      The Agency contended that the Union failed to show that the Agency violated law, rule or the parties' collective bargaining agreement. The Agency maintained that the evidence did not support the Union's claim that the grievant should have received a summary rating higher than "fully successful."

A.     Original Award

      In the original award dated September 30, 1998, the Arbitrator concluded that the Agency applied its performance appraisal system in violation of the collective bargaining agreement. Notwithstanding that determination, the Arbitrator also concluded that the grievant was properly rated.

      The Arbitrator stated that, under the collective bargaining agreement, the Agency has an obligation to encourage all employees to participate in the establishment of critical elements and performance standards by holding discussions on those standards. In this connection, the Arbitrator stated that the agreement requires the Agency to discuss with all employees the performance standards for "all of the rating levels and summary ratings[.]" Original Award at 5. However, the Arbitrator also stated that, under the agreement, the Agency retains final authority on the establishment of performance standards. See id.

      The Arbitrator found that the Agency failed to encourage the grievant and other sales store checkers to participate in the development of performance standards by discussing with them the performance standards required to meet the exceeds level on the critical job elements or to receive summary ratings of "excellent" or "outstanding". Id. at 5. The Arbitrator also found that the Agency failed to inform the grievant, prior to his evaluation, of ratings above that needed to retain his position. See id. at 5-6. Consequently, the Arbitrator found that the failure of the Agency to meet those obligations violated the "spirit" of the collective bargaining agreement, and not law or regulation. Id. at 6.

      However, the Arbitrator rejected the Union's argument that the grievant's performance warranted a rating of "exceeded" in a majority of the critical job elements. The Arbitrator found that there was insufficient "credible evidence" to establish that the grievant should have received a rating of "exceeded" in more than one half of the critical job elements, resulting in a summary rating of "excellent." Id. at 6.

      Further, the Arbitrator rejected the Union's argument that it was improper for the supervisor to apply subjective, and not objective, criteria to evaluate whether the grievant's performance on a critical job element was above the "met" level, and at the "exceeded" level. The Arbitrator found that where, as here, written standards exist for the "met" level only, the rating official exercises his or her judgment to determine whether an employee satisfies the "exceeded" level. In support, the Arbitrator cited American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 41 FLRA 1435, 1438-39 (1991); George C. Marshall Space Flight Center, National Aeronautics and Space Administration, Huntsville, Alabama and Marshall Engineers and Scientists Association, International Federation of Professional and Technical Engineers, 34 FLRA 348 (1990).

      Finally, the Arbitrator rejected the Union's argument that the grievant's evaluation was based on unreasonable and unattainable standards since no sales store checker received a summary rating of "outstanding." The Arbitrator found that there was insufficient evidence in the record to find that the evaluation was based on standards that were unreasonable and unattainable.

      Accordingly, in the decision, the Arbitrator stated there was no "losing party." Original Award at 7. In his summary of the original award, the Arbitrator "denied" the grievance. However, the Arbitrator did not provide a remedy for the violation of the collective bargaining agreement.

B.     Amended Award

      Subsequently, in an amended award dated October 19, 1998, the Arbitrator stated that the grievance was denied in part, and granted in part, and he provided a remedy. The Arbitrator directed the Agency "to comply with the labor agreement and discuss and prepare, with the assistance of the Union and its Sales Store Checker members, Performance Plans to be utilized for rating Sales Store Checkers on an objective basis for the summary ratings of `Excellent' and `Outstanding.'" Amended Award. [ v55 p791 ]

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the award is contrary to the Agency performance appraisal regulations because the Arbitrator agreed with the Agency's argument "that in order to exceed the met [level] for each critical element, an employee's performance would need to be perfect." Union's Exceptions at 2. The Union asserts that the Agency's performance appraisal regulations require that performance standards for a rating of "exceeded" on a critical job element must be attainable and "not an elusive goal which the [A]gency applies at a whim." Id. at 3. The Union argues that, contrary to Agency regulations, the award permits performance standards for a rating of above the "met" level that are virtually impossible to attain.

      Furthermore, the Union contends that "[t]he Arbitrator . . . erred in failing to set-aside the appraisal based on the agency's failure to properly discuss the standards with the grievant and encourage his participation." Id. at 2. In support, the Union cites U.S. Department of Labor and American Federation of Government Employees, National Council of Field Labor Locals, 46 FLRA 3 (1992) (U.S. Department of Labor); 5 U.S.C. § 4302(a) [n2] ; and 5 C.F.R. § 430.204(c) [n3]  Thus, the Union requests that the Authority strike from the grievant's appraisal any rating below exceeds on critical job elements and direct the Agency to provide the grievant a summary rating of "outstanding."

B.     Agency's Opposition

      The Agency argues that the Union's exceptions constitute mere disagreement with the Arbitrator's findings. See Agency's Exceptions and Opposition at 4. The Agency maintains that its performance appraisal system is consistent with law and regulation.

C.     Agency's Exceptions

      The Agency contends that the Arbitrator exceeded his authority by ruling on an issue not before him in arbitration. Id. at 2. Specifically, the Agency argues that the Arbitrator's finding that the Agency violated the "spirit" of the collective bargaining agreement because no sales store checkers received summary ratings of "outstanding" was outside of the scope of the issues before him. Id. The Agency asserts that the parties did not request the Arbitrator to rule on whether the "spirit" of the agreement was violated.

      Further, the Agency contends that the Arbitrator exceeded his authority with regard to the remedy. The Agency argues that the Arbitrator's remedial order directing the Agency to change its performance appraisal system to require written performance standards for summary ratings of "excellent" and "outstanding" was outside of the scope of the issues before him. The Agency asserts that the issues before the Arbitrator did not concern the "design of the performance appraisal program." Id. at 3. Rather, the Agency asserts that the issues before the Arbitrator were narrowly focused on the grievant.

      In addition, the Agency contends that the remedy violates the Agency performance appraisal regulations by requiring the Agency to establish written performance standards for all levels of performance. The Agency asserts that, as found by the Arbitrator, the Agency performance appraisal system providing for performance standards for the level of job retention only is consistent with applicable legal requirements.

      Furthermore, the Agency argues that the remedy conflicts with the collective bargaining agreement. The Agency asserts that the Arbitrator added to the language of Article 41 of the collective bargaining agreement by requiring the Agency to establish written performance standards with Union and employee assistance.

      Finally, the Agency contends that the remedy allows the Union and employees to have an "active say" in defining performance standards and that defining performance standards is solely a management right under section 7106 of the Statute. Id.

D.     Union's Opposition

      The Union contends that the Arbitrator correctly found that the Agency violated the "performance process" by failing to communicate to the grievant the performance standards he would be required to satisfy in order to exceed each critical job element. See Union's Opposition at 2. [ v55 p792 ]

      The Union also contends that the Arbitrator did not exceed his authority. The Union argues that, since he was requested "to assess whether the agency properly and fairly evaluated the grievant[,]" the Arbitrator's decision concerning a violation of the intent of the collective bargaining agreement should be upheld. Id. at 4. In addition, the Union contends that the Arbitrator did not direct the Agency to change its performance system, but only to follow its existing policy. See id.

IV.     Analysis and Conclusions

      The Union's contentions, in its exceptions, that the award is contrary to Authority precedent, law and regulation involve the award's consistency with law. Accordingly, we review the questions of law raised by these contentions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (NTEU Chapter 24) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

      In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the arbitrator's underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. An arbitrator's failure to apply a particular legal analysis "does not render [an] award deficient because, . . . in applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with law[.]" American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, U.S. Immigration and Naturalization Service, United States Border Patrol, 54 FLRA 905, 910 n.6 (1998) (emphasis in original).

A.     The Union's exception that the award is contrary to Agency regulations is based on a misinterpretation of the award.

      The Union contends that the award is contrary to the Agency performance appraisal regulations because the Arbitrator erred by accepting the Agency's argument "that in order to exceed the met [level] for each critical element, an employee's performance would need to be perfect." Union's Exceptions at 2.

      This contention is premised on a misinterpretation of the award. The record does not reflect that the Agency made or that the Arbitrator adopted any argument that the grievant's performance must be perfect to satisfy the exceeds level. Rather, the Arbitrator noted and rejected the Union's argument that the grievant's evaluation was based on unreasonable and unattainable standards since no sales store checker received a summary rating of "outstanding." The Arbitrator found that there was insufficient evidence in the record to find that the grievant's evaluation was based on standards that were unreasonable and unattainable. Accordingly, the Union's contention provides no basis for finding the award deficient.

B.     In the original award, the Arbitrator was not legally required to issue the remedy desired by the Union.

      The Union contends that "[t]he Arbitrator . . . erred in failing to set-aside the appraisal based on the agency's failure to properly discuss the standards with the grievant and encourage his participation." Id. at 2. The Union filed its exceptions before the Arbitrator had issued the amended award in which he ordered a remedy for the Agency's violation of the collective bargaining agreement. Thus, we construe the Union's contention as a claim that, in the original award, the Arbitrator was legally required to issue the remedy desired by the Union.

      We find no merit to the Union's requests that the Authority strike from the grievant's appraisal any rating below "exceeded" on critical job elements and direct the Agency to provide the grievant a summary rating of "outstanding." The Arbitrator found that there was insufficient "credible evidence" to establish that the grievant should have received a rating of "exceeded" in more than one half of the critical job elements, resulting in a summary rating of "excellent." Original Award at 6. Consequently, the Arbitrator found that the violation of the parties' agreement did not affect the grievant's ratings on critical job elements and summary rating. Thus, the Union has not demonstrated that the Arbitrator was legally obligated to provide the remedy that the Union desired.

      The Union's reliance on the Authority's decision in U.S. Department of Labor is misplaced. In that case, an arbitrator determined that a standard for one element had not been developed with required input from one employee, and the arbitrator ordered that the rating on that one element be deleted. Although the Authority denied the agency exception to the remedy fashioned by the arbitrator, it did not state or imply that such remedy was the only one permissible under 5 U.S.C. § 4302(a) and 5 C.F.R. § 430.204(c). Similarly, the Union has not [ v55 p793 ] demonstrated that 5 U.S.C. § 4302(a) or 5 C.F.R. § 430.204(c) obligated the Arbitrator to provide a remedy in the original award.

      The Authority has consistently ruled that arbitrators have great latitude in fashioning remedies. See U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 51 FLRA 1624, 1631 (1996) The Authority has consistently denied exceptions that constitute an attempt to substitute another remedy for that formulated by the arbitrator. See, id. U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 464 (1991) and cases cited therein. The fact that an arbitrator ordered the appraisal to be changed in U.S. Department of Labor does not mandate such a result in this case, particularly in light of the Arbitrator's specific findings that the grievant did not exceed the rating standard. The Union's contention constitutes an attempt to substitute another remedy for that formulated by the Arbitrator. Therefore, the Union's exception provides no basis for finding the award deficient.

      In summary, the Union's exceptions provide no basis for finding the award deficient as contrary to Authority precedent, law and regulation.

C.     The Arbitrator did not exceed his authority.

1.      The Agency's contention that the Arbitrator exceeded his authority by ruling on an issue not before him, is not properly before the Authority.

      The time limit for filing an exception to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). However, where an arbitrator modifies an award in such a way as to give rise to the deficiencies alleged in the exceptions, the filing period begins with the modified award. See, e.g., U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 217, 52 FLRA 1471, 1474 (1997); United States Customs Service, Region I, Boston, Massachusetts and National Treasury Employees Union, 15 FLRA 816, 817 (1984). In this case, the Arbitrator's original award was dated and served on the parties on September 30, 1998. Subsequently, the Arbitrator's amended award was dated and served on the parties on October 19, 1998. As relevant here, the 30-day period for filing exceptions that allege a deficiency in the original award expired on November 4, 1998.

      The deficiency alleged in this Agency exception arose from the original award, not from the amended award. The Arbitrator concluded that the Agency violated the spirit and intent of Article 41 of the agreement, and not law or regulation, by failing to encourage the grievant and other similarly situated employees to participate in the development of performance standards for all rating levels, and by failing to inform the grievant, prior to his evaluations, of performance standards above those needed to retain his position. By contending that the Arbitrator exceeded his authority because the parties did not request the Arbitrator to address whether the spirit or intent of the agreement was violated, the Agency is challenging the Arbitrator's determination in the original award. That is, the exception does not challenge a matter that arose from the amended award.

      The Agency's exceptions were filed on November 4, 1998, more than 30 days after the Arbitrator's original award was served on the parties. As the deficiency alleged in the exception arose from the original award, the Agency's exception is untimely. Therefore, this exception is not properly before the Authority for consideration.

2.     The Agency's contention that the Arbitrator exceeded his authority with respect to the remedy is based on a misinterpretation of the award.

      The Agency argues that the Arbitrator's remedial order directing the Agency to change its performance appraisal system to require written performance standards for summary ratings of "excellent" and "outstanding" was outside of the scope of the issues before him. The Agency asserts that the issues before the Arbitrator did not concern the "design of the performance appraisal program." Agency's Exceptions and Opposition at 3. Rather, the Agency asserts that the issues before the Arbitrator were narrowly focused on the grievant.

      This contention is based on a misinterpretation of the award. Contrary to the Agency's assertion, as a remedy, the Arbitrator did not direct the Agency to change its performance appraisal system to require written performance standards for summary ratings of "excellent" and "outstanding." In this regard, the Arbitrator did not require the Agency to negotiate over performance standards for summary ratings of "excellent" and above, and did not require that it abandon the existing system of [ v55 p794 ] basing summary ratings on critical job element ratings. Further, we note the Arbitrator did not direct the Agency to inform the grievant, prior to his evaluations, of such standards. Rather, the Arbitrator directed the Agency to comply with the terms of the agreement, as interpreted by him, by "discuss[ing] and prepar[ing], with the assistance of the Union and its Sales Store Checker members, Performance Plans" to be used on an objective basis for overall summary ratings of "excellent" and "outstanding." Amended Award. Accordingly, the Agency's contention provides no basis for finding the award deficient.

D.      The remedy does not conflict with an Agency regulation.

      An award is deficient if it is inconsistent with a "governing" agency regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990). However, collective bargaining agreements, rather than agency-wide regulations, govern the disposition of matters to which they both apply. See, e.g., U.S. Department of the Navy, Naval Training Center, Orlando, Florida and International Union of Operating Engineers, Local 673, 53 FLRA 103, 108-109 (1997).

      We find no merit to the Agency's contention that the remedy violates the Agency's performance appraisal regulations by requiring the Agency to establish written performance standards for all levels of performance. The Arbitrator based his award on Article 41, Sections 1 and 4 of the parties' agreement, provisions that he found applicable to the instant dispute. Even assuming that an agency regulation is relevant to the instant dispute, the collective bargaining agreement governs the disposition of this matter. In any event, no regulatory provision is cited by the Agency that prohibited the Arbitrator from enforcing the collective bargaining agreement by ordering the Agency to involve employees in developing performance plans to be used on an objective basis for overall summary ratings of "excellent" and "outstanding."

      Therefore, the Agency's exception provides no basis for finding the award deficient.

E.     The remedy draws its essence from the collective bargaining agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Agency's exception is based on a misstatement of the Arbitrator's award. Contrary to the Agency's claim, the Arbitrator did not add to the language of Article 41 of the collective bargaining agreement by requiring the Agency to establish written performance standards with Union and employee assistance. To remedy the violation of the agreement, the Arbitrator ordered the Agency to "discuss and prepare, with the assistance of the Union and Sales Store Checker members Performance Plans" to be used on an objective basis for overall summary ratings of "excellent" and "outstanding." Amended Award. The collective bargaining agreement calls for the Agency to encourage the participation of employees in the development of performance plans. The remedy does not require the Agency to negotiate over the establishment of performance standards, so requiring discussion to remedy a violation of Article 41 does not "add" to the collective bargaining agreement. In these circumstances, the Authority defers to the Arbitrator's interpretation and application of the parties' agreement. Thus, the Agency has not demonstrated that the remedy fails to draw its essence from the collective bargaining agreement.

      Therefore, the Agency's exception provides no basis for finding the award deficient.

F.      The remedy does not conflict with a management right.

      We review the questions of law raised by this exception de novo. See NTEU Chapter 24, 50 FLRA at 332. The Authority's framework for resolving exceptions to arbitration awards alleging that the award vio- [ v55 p795 ] lates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997). Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under Prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies Prong I of the framework and will then address Prong II. Under Prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies Prong II. An award that fails to satisfy either Prong I or Prong II will be set aside or remanded to the parties, as appropriate. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge 97, 54 FLRA 180, 185 (1998).

      The Agency contends that the remedy allows the Union and employees to have an "active say" in defining performance standards and that defining performance standards is solely a management right under section 7106 of the Statute. Agency's Exceptions and Opposition at 4. Management's identification of critical job elements and establishment of performance standards constitutes the exercise of the rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. E.g., Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1158 (1988). Arbitration awards that determine the content of established performance standards or establish new standards affect management's rights to identify elements and establish standards and are contrary to section 7106(a)(2)(A) and (B) of the Statute. Id.

      Here, the remedy does not prescribe the content of established performance standards nor does it require new standards. In this regard, the Agency is not required to negotiate over the content of the performance standards. The remedy only requires the Agency to "comply with the labor agreement" which calls for the encouragement of the participation of employees in the development of performance plans. Amended Award. Further, the award requires the Agency to "discuss and prepare [performance plans for excellent and outstanding summary ratings], with the assistance of the Union and its Sales Store Checker members." Id. This language does not negate the express reservation of management's rights in Article 41, which states that "[t]he Employer retains final decision authority in the establishment of critical elements and performance standards[.]" Original Award at 3. Thus, the remedy does not affect the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

      Therefore, the Agency's exception provides no basis for finding the award deficient.

      In summary, the Agency's exceptions provide no basis for finding the award deficient on the basis that the Arbitrator exceeded his authority and that the award fails to draw its essence from the collective bargaining agreement. The Agency's exceptions also provided no basis for finding the award deficient on the basis that the award is contrary to Agency regulations and management's rights.

V.     Decision

      The Union's and Agency's Exceptions are denied.






Footnote # 1 for 55 FLRA No. 134

   Article 41 of the collective bargaining agreement provides in pertinent part that:

Section 1. Performance elements shall be identified and performance standards established for each individual employee's position and set of duties, and shall be used as a basis for evaluating the employee's performance. The EMPLOYER shall encourage employees to participate in identifying key performance elements and establishing performance standards. The EMPLOYER retains final decision authority in the establishment of critical elements and performance standards, which are not grievable. The application of the elements and