National Association of Government Employees, Local R5-188 (Union) and United States, Department of the Air Force, Seymour Johnson Air Force Base, Goldsboro, North Carolina (Agency)

[ v58 p590 ]

58 FLRA No. 148

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R5-188
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
SEYMOUR JOHNSON AIR FORCE BASE
GOLDSBORO, NORTH CAROLINA
(Agency)

0-AR-3602

_____

DECISION

June 11, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Charles W. Kohler filed by the Union under § 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 Arbitrator denied the grievance over a performance-related evaluation. We conclude that the Union has provided no basis for finding the award deficient. Accordingly, we deny the Union's exception.

II.      Background and Arbitrator's Award

      As her performance appraisal for the period in dispute, the grievant received an overall performance rating of "R" (meets standards) on all critical elements. In addition to a performance appraisal, in a secondary evaluation, employees at the Agency are rated on nine "Appraisal Factors-Manner of Performance." Award at 8. This evaluation is used for competitive inservice placement actions, and the appraisal factors represent work behaviors that are considered predictive of performance at the next higher level. See id. at 9. For the nine appraisal factors covered in her evaluation, the grievant received four ratings of "4" (slightly below fully successful) and five ratings of "5" (fully successful). [n1]  A level "9" is the highest achievable rating level.

      The Union filed a grievance disputing the grievant's evaluation under the nine appraisal factors. In the absence of a stipulation by the parties, the Arbitrator framed the issue, as follows:

Did the Agency violate the collective bargaining agreement or federal law in issuing the Grievant's performance evaluation . . . ? If so, what shall the remedy be?

Id. at 3.

      The Arbitrator rejected the Union's claim that the appraisal factors used to evaluate the grievant were invalid because they were either absolute or impermissibly vague. The Arbitrator explained that "[w]hile the standards do not specify a required quantity of output, it is difficult to conceive how the responsibilities of the [g]rievant could have been given any quantifiable standard." Id. at 7. The Arbitrator found that the appraisal factors "clearly convey the requirements of the position and standards for performance." Id. The Arbitrator also found the factors "are sufficiently objective so as to permit an accurate evaluation of an employee's performance." Id.

      Finally, the Arbitrator reviewed the explanations of the grievant's supervisor for the assigned ratings and determined that the Agency had evaluated the grievant in a fair and objective manner, as required by the collective bargaining agreement. Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exception

      The Union contends that the Arbitrator erred in determining that the appraisal factors were valid under 5 U.S.C. § 4302 and 5 C.F.R. part 430. The Union notes that under law and regulation, a performance standard must permit objective appraisal of performance to the maximum extent feasible and must be reasonable, realistic, and attainable. The Union argues that the appraisal factors are absolute or impermissibly vague. According to the Union, the appraisal factors are not actual standards by which performance can be measured, but rather are only a description of duties assigned. The Union asserts that the Arbitrator's "conclusion that the standards describe the performance expected in the position is simply incorrect." Exception at 5. The Union also claims that the appraisal factors are absolute because "[a] single instance of missing a deadline and not acting in time to make an adjustment necessarily leads to a failure of the standard." Id. [ v58 p591 ]

B.     Agency's Opposition

      The Agency contends that the Union has not demonstrated that the Arbitrator erred in finding that the appraisal factors are valid.

IV.      Analysis and Conclusions

      The Union's exception challenges the Arbitrator's determination that the appraisal factors used to evaluate the grievant are valid. [n2]  The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Generally, 5 U.S.C. § 4302 requires agencies to establish performance appraisal systems that, to the maximum extent feasible, permit the accurate evaluation of performance on the basis of objective, job-related criteria. See, e.g., United States Dep't of Health and Human Services, Soc. Sec. Admin., Boston Region, 48 FLRA 943, 948 (1993) (SSA, Boston). To be objective, a performance standard should be "sufficiently precise and specific as to invoke a general consensus as to its meaning and content." Id. (quoting Wilson v. HHS, 770 F.2d 1048, 1052 (Fed. Cir. 1985) (Wilson)). In the view of the Merit Systems Protection Board (MSPB), performance standards "may be more or less objective depending upon the job measured, but must be sufficiently specific to provide a firm benchmark toward which the employee must aim her performance." Melnick v. HUD, 42 MSPB 93, 98 (1989). However, there is no requirement that standards must be quantitative or numerical, see Newark Air Force Station, 30 FLRA 616, 628 (1987), and performance standards may permit subjective judgments of an employee's supervisor, see SSA, Boston, 48 FLRA at 948-49.

      In the view of MSPB, a "performance standard that provides that only one incident of poor performance will result in an unsatisfactory rating on a job element is an absolute standard." Sullivan v. Dep't of the Navy,
44 MSPR 646, 651-52 (1990). Although the MSPB does not hold that absolute standards are per se invalid, the MSPB does hold that "their establishment will generally constitute an abuse of discretion unless death, injury, breach of security, or great monetary loss could result from a single failure to meet the performance standard." Id. at 652.

      In this case, after acknowledging the legal and regulatory requirements for performance standards, the Arbitrator rejected the Union's claim that the appraisal factors were invalid. He specifically found that the appraisal factors: (1) could not have been quantifiable; (2) clearly convey the requirements of the position and the standards for performance; (3) are sufficiently objective so as to permit an accurate evaluation of an employee's performance; and (4) are not subjective and vague. The Union has failed to establish otherwise.

      We reject the Union's claim that the appraisal factors are impermissibly vague. The appraisal factors provide a firm benchmark toward which employees must aim their performance, and "most people [would] understand what they mean and what they require[.]" Wilson, 770 F.2d at 1055. Therefore, as found by the Arbitrator, the appraisal factors are sufficiently precise and specific so as to invoke a general consensus as to their meanings. See AFGE Council 236, 43 FLRA 982, 987 (1992) (citing Wilson and finding standards not impermissibly elusive); NFFE Local 1263, 34 FLRA 697, 701 (1990) (citing Wilson and finding standard was sufficiently objective).

      We also reject the Union's claim that the appraisal factors are absolute. The Union has not demonstrated that the appraisal factors create absolute requirements. See NTEU Chapter 229, 32 FLRA 826, 831 (1988) (relying on the arbitrator's finding to the contrary, the Authority rejected claim that standard was absolute). In this regard, the appraisal factors do not establish rigid guidelines where a single error or lapse results in failure to meet the standards of performance. See Evans v. Dep't of the Treasury, 28 MSPR 366, 370 (1985). Moreover, the grievant's supervisor did not apply the appraisal factors in an absolute manner. In explaining his ratings of the grievant, he identified several incidents of the grievant failing to meet the appraisal factors, yet did not rate the grievant unsatisfactory under any of the nine factors. See Rogers v. DODDS, 814 F.2d 1549, 1553 (Fed. Cir. 1987) (because the agency applied standards in a flexible manner, the court rejected the claim that the performance standards were absolute). Furthermore, the Union has not established that the grievant could not have exceeded the factors with exemplary performance. See Faust v. Smithsonian Inst., 29 MSPR 496, 498 (1985) (standards not absolute because employees could exceed them with exemplary performance); Stubblefield v. Dep't of Commerce, 28 MSPR 572, 575 (1985) (same).

      Accordingly, we deny the Union's exception.

V.      Decision

      The Union's exception is denied. [ v58 p592 ]


APPENDIX

The Arbitrator stated that, with respect to the grievant's primary responsibility of facility management, the Core Personnel Document contains the following appraisal factors:

A     Ensures requirements for new, and/or required modifications to existing, facilities are accurately identified, properly documented, and forwarded through prescribed channels in a timely manner.

B.     Provides comprehensive analysis and meaningful recommendations to management regarding more effective and efficient utilization of facilities and equipment and any requirements for new and/or upgraded facilities and equipment.

C.     Maintains an accurate, up-to-date status of all facilities and equipment in the 4th Logistics Group and effectively monitors the status of all work order requests submitted to the Civil Engineering Squadron.

D.     Prepares accurate monthly facilities work order priority listings and presents monthly facilities status briefings to the 4th Logistics Group Commander, to include the current status of any pending or open facility and/or environmental work orders.

Award at 6-7.

The Arbitrator also stated that the following appraisal factors were established for the grievant's responsibility as Resource Advisor for the 4th Logistics Support Squadron:

A.     Accurately reviews, monitors, and analyzes the 4th LSS budget and accurately determines the propriety and cost effectiveness of funding requests in a timely manner.

B.     Accurately identifies and reports the need for transfer of funds between object class and line item accounts, the need for reprogramming between budget accounts, and effectively adjusts funding targets as necessa