32:0196(33)AR - - HUD and AFGE Local 476 - - 1988 FLRAdec AR - - v32 p196
[ v32 p196 ]
The decision of the Authority follows:
32 FLRA No. 33
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 476, AFL-CIO
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Herbert Fishgold. The grievance before the Arbitrator alleged that under established performance standards, the grievant was entitled to an outstanding performance rating rather than the satisfactory performance rating he received. The Arbitrator determined that the Agency had a reasonable basis for rating the grievant "Satisfactory." Therefore, he denied the grievance.
Exceptions were 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. For the reasons stated below, we conclude that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we deny the Union's exceptions. The Union has not established the award as contrary to section 7106(a)(2)(B) or section 7122(a) of the Statute.
II. Background and Arbitrator's Award
As his annual performance appraisal for the period between October 1, 1985, and September 30, 1986, the grievant received an overall "Satisfactory" rating. A grievance was filed, and subsequently submitted to arbitration, claiming that the performance appraisal rating given to the grievant was not accurate. The grievant sought to have his rating in job element number one changed from "Satisfactory" to "Outstanding." According to the record, receipt of an outstanding in element number one would dictate that his overall rating would be raised to outstanding. Union Exceptions at 3.
The grievant claimed that he was denied an outstanding rating because of the Agency's arbitrary, unfair, and retaliatory actions. Specifically, the grievant asserted that his evaluation was unfair due to the personal animus of his superiors because of past policy differences and his prior criticism of the Agency. Further, he claimed that the Agency violated the collective bargaining agreement because the management officials involved in his rating were appointed as officials to review and decide the grievance. Award at 8.
The Arbitrator noted that job element number one is "[p]repares appropriate written/oral responses to correspondence." He further noted that the performance standard has two requirements for an outstanding rating. First, an employee must meet satisfactory criteria "almost all of the time (approximately 92%)." Award at 2. The second requirement is that written materials are "rarely returned for substantive rewrite; reflect the style and preference of the person signing." Award at 3. The Arbitrator estimated that during the appraisal period the grievant produced 55 to 100 pieces of correspondence which were reviewed under element number one. Award at 4. He found that management returned two pieces of correspondence to the grievant for revision and that two other assignments were not completed to management's satisfaction. Award at 5-6.
Contrary to the Union's arguments, the Arbitrator found that "no unlawful animus has been shown and, that rather, the grievant was rated on job-related factors." Award at 11-12. Although the Union argued that the standard for element number one is essentially quantitative, the Arbitrator concluded that the standard should not be read mechanically. He stated that, "[i]n addition to meeting the satisfactory criteria about 92% of the time, the employee is also required to satisfy a criteria that his work product reflect the style and preference of the person to sign." Award at 13. Thus, although management established only four instances in which the grievant's work was returned for rewrite, the Arbitrator concluded that "the record contains a reasonable basis for the 'Satisfactory' as opposed to 'Outstanding' rating in element number one." Award at 14. In reaching this conclusion, the Arbitrator noted that the grievant was put on notice in progress reviews and conversations with his supervisors that his work product did not conform to the style and approach desired by his superiors. Award at 13. Additionally, the Arbitrator found that management had not violated the contract in assigning officials to process the grievance. Award at 14. Therefore, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to section 7106(a)(2)(B) of the Statute. The Union argues that the Arbitrator exceeded his authority by substituting his judgment of the employee's performance for an "objective and quantitative assessment" and by failing to apply elements and standards established by management. Union Exceptions at 5. Specifically, the Union argues that by focusing on policy differences between the grievant and his supervisors, the Arbitrator created a new standard. The Union maintains that the Arbitrator should have measured the number of unacceptable items against the total number of pieces of correspondence that the grievant produced. Using the data least favorable to the grievant, the Union argues that the grievant was satisfactory in 92.7 percent of his work (4/55 = 7.27%; 100% - 7.27% = 92.73%). Thus, according to the Union, the grievant was entitled to an outstanding rating.
B. Agency Opposition
The Agency contends that the Union's exceptions constitute disagreement with the Arbitrator's decision. The Agency notes that under the parties' collective bargaining agreement, the Arbitrator has authority to determine the grievant's challenge to his performance rating. Also, the Agency asserts that the Arbitrator correctly found that the performance standard for element number one is not essentially quantitative. According to the Agency, the Union has not demonstrated that the award is contrary to any law, rule, or regulation or that the award is deficient on grounds similar to those applied in private sector labor-management relations a