38:0870(73)AR - - Planners-Estimators, Progressmen and Schedulers Association Local 5 and Navy, Mare Island Naval Shipyard, Vallejo, CA - - 1990 FLRAdec AR - - v38 p870

[ v38 p870 ]
The decision of the Authority follows:

38 FLRA No. 73














December 10, 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 Paul D. Staudohar. (*) A grievance was filed disputing the performance elements and standards used by the Agency in evaluating the performance of certain employees. The Arbitrator concluded that the matter was not grievable and, accordingly, did not address the merits of the dispute.

The Union filed exceptions to the award under section 7122(a) of the Federal Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On January 22, 1990, the Union filed a grievance alleging that the performance elements and standards for a group of planners and estimators did not comply with law, rule, or regulation. When the matter was not resolved, it was submitted to arbitration on the following issue: "[D]o the[] performance appraisal elements and standards [for the planners and estimators in question] violate law, rule or regulation, and if so what is the remedy[?]" Transcript at 8.

The Union contended before the Arbitrator that the performance elements and standards were not objective, not reasonable, and not attainable. The Union also maintained that the elements and standards did not accurately evaluate job performance. The Union asserted that the elements and standards "were written as absolute standards" and "were intentionally written to be as subjective as possible. . . ." Id. at 10.

Article 27, section 12 of the parties' collective bargaining agreement requires grievances to be filed in writing within 15 calendar days of the occurrence giving rise to the grievance, or within 15 calendar days of the date the grievant became aware of the occurrence prompting the complaint. The Union acknowledged at the arbitration hearing that it first became aware of the performance elements and standards in April 1989. However, the Union contended that the occurrence giving rise to the grievance was the issuance of Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987) (Newark), in which the Authority held that a grievance alleging that management violated applicable law when it established a grievant's performance elements and standards--whether or not the grievant had been evaluated against the elements and standards--was arbitrable unless otherwise excluded from the scope of the parties' collective bargaining agreement. The Union asserted that it became aware of Newark in January 1990, and contended that, as it filed its grievance within "approximately ten days of becoming aware of that decision. . . [,]" the grievance was timely. Transcript at 17. The Union also maintained that Newark established the grievability of its claim.

The Arbitrator found that the issuance of Newark furnished the Union with a basis for filing a grievance, and that the Union filed the grievance "expeditiously" after learning of that decision. Id. at 41. Consequently, the Arbitrator concluded that the grievance was timely filed. However, the Arbitrator also concluded that the dispute was not grievable.

Specifically, the Arbitrator found that Article 27, section 4i of the parties' collective bargaining agreement excluded, among other matters, "the content of published Department of the Navy policy" from the negotiated grievance procedure. Id. at 43. The Arbitrator found also that a Department of the Navy Instruction stated that the "'contents of the individual performance plan are neither grievable nor appealable.'" Id. Accordingly, the Arbitrator concluded that the grievance was not grievable or arbitrable, and he dismissed the grievance.

III. The Union's Exceptions

The Union contends that the grievance is grievable under section 7103(a)(9) of the Statute and arbitrable under section 7121(b)(3)(C). Noting that the "list of matters that are excluded from the grievance proceedure [sic] by the [collective bargaining] agreement is very explicit[,]" the Union asserts that Article 27, section 4i of the agreement is only intended "to exclude from the grievance proceedure [sic] those issues that the Department of the Navy makes available to the Public. . . ." Exceptions at 2.

In support of its contention that the parties did not intend to exclude grievances over performance standards from the scope of the negotiated grievance procedure, the Union states that the effective date of the agreement was "over a year prior to the date of [Newark,] the FLRA decision . . . which . . . allowed such grievances." Id. Finally, the Union maintains that the Arbitrator "erred when he ruled that the union grieved a matter that was excluded by the parties['] agreement[,]" because the Union was "not grieving the content of . . . Navy Policy[.]" Id. Instead, the Union maintains that it was grieving only "the content of individual performance appraisal system standards." Id.

IV. Analysis and Conclusions

We construe the Union's arguments concerning the Arbitrator's interpretation of Article 27, section 4i of the parties' collective bargaining agreement as assertions that the award fails to draw its essence from the agreem