American Federation of Government Employees, National Council, of Field Labor Locals, Local 2391 (Union) and United States, Department of Labor, Employee Benefit Security Administration, Seattle, Washington and (Agency)

[ v59 p547 ]

59 FLRA No. 95

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL
OF FIELD LABOR LOCALS
LOCAL 2391
(Union)

and

UNITED STATES
DEPARTMENT OF LABOR
EMPLOYEE BENEFIT
SECURITY ADMINISTRATION
SEATTLE, WASHINGTON

(Agency) [n1] 

0-AR-3680

_____

DECISION

December 31, 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 exceptions to an award of Arbitrator Vern E. Hauck 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 did not file an opposition to the Union's exceptions.

      The Arbitrator found that the Agency did not violate the parties' agreement or federal law when it developed and implemented two critical elements of the Agency's performance appraisal system. For the reasons discussed below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      In 1995, the Agency and the Union engaged in a collaborative effort to revise the performance elements and standards for PWBA Investigators and Auditors. A labor-management committee developed the Agency's initial "Performance Management Plan prototype" between November 1995 and February 1997. Award at 5. In February 2001, the Agency notified the Union that, on April 1, 2001, it would implement new performance standards that would include Critical Element 1 -- Investigative Productivity -- and Critical Element 4 -- Administrative. Id. at 5.

      The Union alleged that the new performance system, which was used to evaluate the grievant from April 30, 2001 to September 30, 2002, did not receive proper OPM approval. Id. at 7. In the absence of a stipulated issue by the parties, the Arbitrator framed the issue as:

Did Management violate federal law or the collective bargaining agreement in developing and implementing the grievant's performance standards, specifically Job Element #1 -Investigative Productivity and Job Element #4 - Administrative? If not, what should the remedy be?

Id. at 2. [n2]  The Arbitrator stated that the parties' dispute "centers around" Articles 43.1, 43.2.B.5, 43.5.A and other portions of the labor agreement, 5 U.S.C. § 4302, 5 C.F.R. 430.203, and 5 C.F.R. 430.209. Id. at 6. [n3] 

      The Arbitrator denied the grievance. He found that the Union and the Agency engaged in a joint effort to develop a new set of performance appraisal standards between November 13, 1995 and February 12, 1997. The Arbitrator further found that on February 12, 1997, the Office of Personnel Management (OPM) "reviewed the new DOL performance appraisal system determined the system proper pursuant to 5 C.F.R. 430 subpart B and issued approval on February 12, 1997." Id. at 10. The Arbitrator stated that while the collaborative effort to establish and implement the new standards was ongoing, the parties could not agree on whether Element 4 should be a critical element. The Arbitrator ruled that the Agency "properly notified" the Union that the version of the new performance system preferred by the Agency, including Critical Element 4, would be implemented on April 1, 2001. Id. at 5.

      The Arbitrator found that the new performance appraisal standards: were properly developed in good faith by the parties; conformed with Articles 43.2.B.5, 43.5.A and other portions of the parties' agreement; and met the requirements of 5 U.S.C. § 4302.b.1, 5 C.F.R. [ v59 p548 ] §§ 430.203, 430.209, "as well as other regulation and law." Id. at 10. The Arbitrator ruled that the Agency's implementation of the new performance appraisal standards was proper and in accordance with the parties' agreement, as well as applicable law and regulations. Id.

      Specifically, the Arbitrator found that the Agency's need for timely and accurate entry of Enforcement Management System (EMS) data -- which Critical Element 4 addresses --"overwhelm[ed]" any concerns the Union had with respect to this element. Id. at 11. The Arbitrator further found that the Agency "followed every aspect of the approval process before implementing Critical Element No. 4 in the Seattle District Office[,]" and that "no arbitrary elements or standards were developed and embodied in Critical Element No. 4." Id. The Arbitrator also found that the grievant's position description "has not been violated" by the requirements of Critical Element 4; the Agency's Seattle PWBA employees were properly trained in administration and other aspects of Critical Element 4; and Critical Element 4 is "reasonable, proper and in conformance with" Article 43 of the parties' agreement and applicable law and regulations. Id. at 12.

III.     Union's Exceptions

      The Union contends that the award violates law and Article 43.5.A of the parties' agreement.

      More specifically, the Union claims that the Arbitrator erred in finding that OPM had reviewed and approved the new performance appraisal system, including Critical Element 4. The Union claims that this finding "is not supported by a preponderance of the evidence and mischaracterizes the actual evidence submitted." Exceptions at 3. More specifically, the Union argues that a 1997 letter from OPM to the Director of Human Resources for the Department of Labor (DOL) "is merely a certification that the overall `umbrella' performance appraisal system . . . contained the appropriate number of measurement criteria." Id. at 6. The Union asserts that this certification does not prove that the critical elements developed by the Agency conform with federal law.

      The Union also contends that the Arbitrator failed to review the evidence submitted to show that, in fact, Critical Element 4 "did not meet the definition of critical element pursuant to 5 CFR 430 subpart B . . . ." Id. The Union argues that by failing to determine if Critical Element 4 met the statutory definition of a critical element, the Arbitrator's finding that Article 43.5.A of the parties' agreement had not been violated is deficient. In this connection, the Union asserts that "[m]aking a finding as to the legal validity of Element #4 is the essence of any violation" of that provision. Id. at 7.

      The Union further contends that the award violates federal law and Article 43.5.A of the parties' agreement because the Arbitrator failed to perform a proper analysis, as set forth in OPM's Handbook for Measuring Employee Performance (Handbook), to determine the validity of Critical Element 4. The Union argues that it proved "that the grievant spent less than 3% of her time inputting information into EMS . . . ." Id. at 8. The Union contends that the Agency did not submit any evidence to prove that EMS duties qualified as a critical element under 5 C.F.R. 430.203. The Union further argues that in finding that "`the Employer's technological capability and business need for timely accurate EMS data overwhelms the Union's concern over an event that has not materialized[,]" exceptions at 8 (quoting award at 11), the Arbitrator "erroneously took actual harm into his determination." Id.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of the Air Force, Warner Robins AFB, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Union argues that the award is contrary to law, essentially alleging that Critical Element 4 is inconsistent with 5 C.F.R. § 430.203 and with OPM's Handbook.

      Section 430.203 defines the term "critical element" as:

a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee's overall performance is unacceptable. Such elements shall be used to measure performance only at the individual level.

      The Arbitrator specifically found that the appraisal system, including Element 4, met the requirements of law and regulation, including 5 C.F.R. § 430.203. See Award at 10. The Union has failed to identify any [ v59 p549 ] inconsistency between the award and 5 C.F.R. § 430.203 and we find no merit to the exception. See, e.g., Prof'l Airways Sys. Specialists, Dist. No. 1, MEBA/NMU (AFL-CIO), 48 FLRA 764, 768-69 (1993) (award not deficient as contrary to law where excepting party fails to establish that the award is in any manner contrary to the law, rule, or regulation on which the party relies).

      In addition, the Union has not established any inconsistency between the award and OPM's Handbook. The portion of the Handbook cited by the Union contains questions and answers "[t]o help decide" whether a performance element is critical. Exceptions, Tab 11 at 2. The Handbook does not set forth mandatory criteria that an agency must follow in establishing critical elements, other than those set out in the regulation. As we found above, the Union has not established that the award is inconsistent with any regulatory requirements.

      Finally, we find no merit to the Union's assertion that the Arbitrator erred in relying on OPM's approval of the Agency's performance appraisal system to sustain a finding that the Agency properly designated Element 4 as a critical element. The Arbitrator expressly found that the appraisal system, including Element 4, met the requirements of 5 U.S.C. § 4302.b.1, as well as 5 C.F.R. §§ 430.203 and 430.209. See Award at 10. As such, the Arbitrator did not rely exclusively -- if at all -- on the prior OPM approval of the Agency's appraisal system in sustaining the validity of Critical Element 4.

      In sum, the Union has failed to establish that the Arbitrator erred, as a matter of law, in finding that the Agency satisfied all regulatory requirements in designating Element 4 a critical element. Consequently, we deny the exception.

B.     The award draws its essence from the parties' agreement.

      The Union alleges that the Arbitrator's finding that Article 43.5.A of the parties' agreement had not been violated is deficient. We construe this as a claim that the award fails to draw its essence from the parties' agreement.

      In resolving exceptions that challenge an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential "essence" standard of review that the federal courts apply in reviewing awards in the private sector. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (DOL). In order for an award to be found deficient as failing to draw its essence from the agreement, it must be established 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 agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. DOL, 34 FLRA at 575. The Authority defers to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      Article 43.5.A. provides the definition of a critical element. The Arbitrator found that the performance appraisal system, including Element 4, had been developed and implemented in accordance with the provisions of the parties' agreement, including Article 43.5.A. The Union has not shown that the Arbitrator's interpretation of the parties' agreement is irrational, implausible, or is otherwise deficient under the standard set forth above.

      Furthermore, the Union has not demonstrated that the award is inconsistent with Article 43.5.A. because the Arbitrator failed to determine the validity of Critical Element 4. The Union has not established that the Arbitrator was required to make such a determination or that he erred in finding that the Agency properly developed and implemented that element.

      Accordingly, the Union's exception does not establish that the award fails to draw its essence from the parties' agreement and we deny the exception.

V.     Decision

      The Union's exceptions are denied.


APPENDIX

Article 43 Performance Management System

Section 1 - Coverage

The Article concerns the impact and implementation of the Government-wide regulations on the Performance Management System (PMS), and the DOL regulation (DPR 430, Appendix B). These regulations, as appropriate, apply to employees in the NCFLL bargaining unit except as provided herein.

The Government-wide regulations and the Department's implementing regulation are applicable to employees in the bargaining unit, except where non-mandatory provisions of the regulations are in conflict with this Article. [ v59 p550 ] In such cases, the parties agree that Article 43 is controlling.

Section 2 - Purpose and Objectives of Performance Management System

. . . .

B.     Performance management integrates the processes an Agency uses to --

. . . .

(5)     Use appropriate measures of performance as the basis for recognizing and rewarding accomplishments; and

. . . .

Section 5 - Elements

      A.     A critical element means a component of a position consisting of one or more duties and responsibilities which contributes toward accomplishing organizational goals and which is of such importance that unacceptable performance on the element would result in unacceptable performance in the position. Each employee must have a performance plan which must include at least one critical element that addresses individual performance. Critical element(s) can also address individual performance on a team.

Such unacceptable performance would require remedial action and denial of a within-grade increase, and may be the basis for reduction in grade or removal of that employee. Such action may be taken without regard to performance in other components of the job.

Exceptions, Tab 2.

5 U.S.C. § 4302.b.1 states:

(b) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for --
     (1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system[.]

5 C.F.R. § 430.203 states in pertinent part:

Critical element means a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee's overall performance is unacceptable. Such elements shall be used to measure performance only at the individual level.

5 C.F.R. § 430.209 states in pertinent part:

An agency shall --

(a) Submit to OPM for approval a description of its appraisal system(s) as specified in § 430.204(b) of this subpart, and any subsequent changes that modify any element of the agency's system(s) that