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34:0640(109)AR - - Air Force, Scott AFB, IL and NAGE Local R7-23 - - 1990 FLRAdec AR - - v34 p640

[ v34 p640 ]
The decision of the Authority follows:

34 FLRA No. 109










January 29, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Gladys W. Gruenberg filed by the National Association of Government Employees, Local R7-23 (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 Department of the Air Force (the Agency) did not file an opposition to the exceptions.

The Arbitrator denied the grievant's claim that she was entitled to a higher performance rating. The Union asserts that the award is contrary to law and regulation. For the following reasons, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant claimed that she was incorrectly rated on her performance as a secretary. The grievant was rated as "Exceeded" on three critical elements and "Met" on four critical elements, which resulted in an overall evaluation of "Fully Successful." She requested that the lower rating on four critical elements be raised to "Exceeded," which would give her an overall evaluation of "Excellent."

The Union filed a grievance on behalf of the grievant. The grievance was submitted to arbitration on the following issue:

Did the Employer violate the collective bargaining agreement by its performance rating of Grievant . . . for the period July 1, 1986 through June 30, 1987? If so, what is the remedy?

Award at 1.

The Union contended that the grievant's rating on four of seven critical elements was "not in compliance with law or regulations because it does not accurately and fairly rate her performance." Award at 3. The Union contended that the grievant was not counseled about her performance and charged that critical element 6S(b), which concerned the handling of classified documents, contained an impermissible absolute standard of no errors. The Union charged that the grievant was incorrectly rated on critical element 10, making travel arrangements for the supervisor, because the supervisor made his own travel arrangements. The Union also claimed that management implemented a quota system limiting the number of high ratings in violation of Federal regulations.

The Agency denied that the grievant was incorrectly rated and that it used a quota system to allocate high ratings. The Agency justified its use of an absolute standard for element 6S(b) on the basis that such a standard was "necessary for security purposes." Award at 3. The Agency contended that formal counseling was not necessary because the grievant was performing at a satisfactory, although not superior, level.

The Arbitrator ruled that management could require an absolute standard of no errors with regard to element 6S(b). She pointed out that "'breach of security' is one of the exceptions which exempts an absolute standard from the charge of abuse [of discretion]." Award at 4. Therefore, she concluded that the standard applied to the grievant was proper.

With respect to Element 10, the Arbitrator stated that the grievant's "supervisor testified that he made his evaluation based on how well [the grievant] had handled the few assignments [concerning travel arrangements] she had. There is nothing in the record to contradict his rating." Award at 4.

The Arbitrator found that the grievant was properly rated as having "Met" the standards for critical elements 2 and 4. Element 2 involves receiving and transmitting mail. Element 4 involves review of outgoing correspondence. The Arbitrator noted that the supervisor criticized the grievant's productivity as to both elements. The Arbitrator found that the supervisor's criticism was "corroborated by her rating of 6 (slightly above fully successful in the central range) for [Appraisal] Factor 6 Work Productivity and her rating of 6 for [Appraisal] Factor 9 Work Management." Award at 5. Appraisal factors are part of the grievant's performance appraisal. See Exceptions, Joint Exhibit 3. The Arbitrator noted that as to both elements, the grievant's supervisor cited the grievant's failure to keep up with the volume of correspondence. The Arbitrator concluded that "[she was] not convinced that the supervisor's judgment was unfair in this connection." Id.

The Arbitrator rejected the Union's contention that the grievant should have been rated higher on Elements 2 and 4 because the grievant had no errors in her performance. The Arbitrator stated that "[t]he error record is but one part of the evaluation, giving it a quantitative dimension, but that alone does not warrant an Exceeded rating since the supervisor is judging her positive performance. Mere lack of errors does not ensure an Excellent rating." Award at 5.

The Arbitrator agreed with the Agency that counseling was not necessary because there was no indication that the grievant was not meeting the minimum performance standards. The Arbitrator also found that the Agency did not impose an improper quota system "to keep ratings low, or specifically to downgrade the grievant's rating in derogation of her work performance." Award at 5.

The Arbitrator concluded that the Agency did not violate the collective bargaining agreement in rating the grievant's performance and denied the grievance.

III. Union's Exceptions

The Union contends that the award is contrary to law and regulation, particularly Air Force Regulation (AFR) 40-452, which contains the requirements for the Agency's performance management program. The Union states that under AFR 40-452, performance standards "must be defined in measurable terms of quality, timeliness and/or quantity." Brief In Support of Exceptions at 2. The Union asserts that "this award is deficient because it is based on an assumption by the arbitrator which is contrary to applicable law or regulations. Specifically, the arbitrator concluded that a '[m]ere lack of errors does not ensure an Excellent rating.' . . . [T]his is clearly contrary to applicable regulations." Exceptions at 1.

The Union states that the Arbitrator "clearly misapplied the regulation when she assumed that a mere lack of errors does not ensure an Excellent rating." Brief In Support of Exceptions at 4. The Union maintains that if the performance standards for critical elements 2 and 4 permit the making of a small number of errors, then the grievant's having zero errors in those elements entitles her to a rating of "Exceeded" rather than "Met." The Union makes a similar argument with regard to the standard for Element 10, which allows not more than two to three errors per quarter in making travel reservations.

IV. Discussion

We conclude that the Union has failed to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

The Union has failed to show that the Arbitrator's award is contrary to AFR 40-452. The Union has not demonstrated that the grievant was entitled to a rating of "Exceeded" on elements 2 and 4 because she did not make any errors. The Arbitrator properly reviewed the Agency's appraisal of the grievant, including its consideration of the appraisal factors concerning the grievant's productivity, and determined that the grievant's appraisal was performed in accordance with law, regulation and the parties' collective bargaining agreement. See Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1160-62 (1988) (discussing the authority of arbitrators in resolving grievances over performance ratings).

The Union also has failed to show that the grievant was entitled to a rating of "Exceeded" on element 10. The Arbitrator found that there was nothing in the record to contradict the supervisor's rating as to this element, which was based on his evaluation of how well the grievant had handled her assignments concerning travel arrangements. The Union's exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact, conclusions, and evaluation of the evidence. The exceptions are an attempt to relitigate the merits of the grievance before the Authority. Such exceptions provide no basis for finding an award deficient. See National Treasury Employees Union, Chapter 229 and Department of Health and Human Services, 32 FLRA 826 (1988) (exceptions to award denying grievance over performance evaluation denied as disagreement with arbitrator's findings and conclusions and as attempt to relitigate merits of the case); Carswell Air Force Base and American Federation of Government Employees, Local 1364, 32 FLRA 789 (1988) (denied exceptions that arbitrator failed to properly evaluate grievant's performance under established standards and Air Force regulations; exceptions constituted nothing more than an attempt to relitigate the case before the Authority and disagreement with the arbitrator's evaluation of the evidence).

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)