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44:0622(51)AR - - Treasury, IRS, Atlanta, GA and NTEU Chapter 26 - - 1992 FLRAdec AR - - v44 p622

[ v44 p622 ]
The decision of the Authority follows:

44 FLRA No. 51













March 26, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James F. Scearce 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.

An employee filed a grievance contesting his annual performance appraisal. The Arbitrator denied the grievance.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient. Therefore, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, an appeals officer, filed a grievance after he received an overall rating of minimally successful in his annual performance appraisal. The grievant's rating, which resulted from application of Article 12 of the parties' collective bargaining agreement, resulted from his failure in one "job aspect" of one critical job element.(1) When the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:

Is the performance appraisal system found in Article 12, Section 5A and 5B of the National Agreement unlawful; if so, what is the appropriate remedy?

Award at 10.(2)

The Arbitrator found that appeals officers' performance is evaluated based on seven job elements and that each job element is comprised of job aspects. The Arbitrator also found that, under Article 12 of the parties' agreement, which the Arbitrator stated was "unilaterally imposed" by the Agency, a failure in one aspect of an element required a rating of minimally successful in that element. Id. at 10. Further, according to the Arbitrator, Article 12 required an overall rating of minimally successful when an employee received a minimally successful rating in one job element.

The Arbitrator stated that the "essential question" before him was whether the appraisal system was lawful. Id. The Arbitrator stated, in this regard, that a "persuasive argument" had been made that the system was "harsh[.]" Id. at 12. The Arbitrator concluded, however, that the Union had not established that the appraisal system violated 5 U.S.C. § 4302 or was otherwise unlawful.(3) Accordingly, the Arbitrator denied the grievance.

III. Union's Exceptions

The Union contends that the Arbitrator's award is contrary to law, rule, or regulation because the Agency's performance appraisal system is unlawful based on the Merit Systems Protection Board's (MSPB) decision in Shuman v. Department of the Treasury, 23 MSPR 620 (1984) (Shuman).

The Union asserts that Shuman "stands for the proposition that failure on a component or aspect of a critical element, standing alone, is insufficient to establish failure on the critical element as a whole." Exceptions at 9. The Union claims that the Agency "must affirmatively show that the aspect or component is so significant, that failure on that aspect outweighs the successful ratings on the remaining aspects of the element." Id. at 9-10. The Union contends that, by "designing a purely mechanical system," in which "failure on any single aspect leads inextricably to a lowered rating on both the element and the overall evaluation," the Agency has not satisfied its responsibility under Shuman. Id. at 10 (emphasis in original). Citing Nalls v. Department of the Air Force, 46 MSPR 603 (1991) (Nalls), the Union also contends that "Shuman's balancing formula is appropriate to any performance action predicated upon a multi-aspect performance standard." Id.

IV. Agency's Opposition

The Agency asserts that the Union's argument regarding Shuman should not be considered because the argument was first raised to the Arbitrator in a post-hearing brief. The Agency also asserts that Shuman does not apply in this case because Shuman is based on 5 U.S.C. § 4303, which applies only to actions based on unacceptable performance.(4)

V. Analysis and Conclusions

Section 2429.5 of the Authority's Rules and Regulations provides that the Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the arbitrator. The Agency acknowledges that the Union made its argument concerning Shuman to the Arbitrator in a post-hearing brief. Moreover, the argument is clearly related to the stipulated issue before the Arbitrator. Accordingly, we conclude that the argument is properly before us.

We also conclude, however, that the Union has not shown that the award is deficient under Shuman.

In Shuman, an employee was removed from her position for unacceptable performance under 5 U.S.C. § 4303. On appeal to the MSPB, the employee asserted, among other things, that the agency could not properly sustain its burden of establishing that her performance in one critical element was unacceptable because her alleged performance deficiencies related to only five of the nine components of the standard for that element. In this regard, the employee contested both the lawfulness of the disputed performance standard under 5 U.S.C. § 4302 and the lawfulness of the application of that standard under 5 U.S.C. § 4303.

With respect to the former issue, the MSPB held that "a performance standard may consist of more than one component, and that the incumbent of a position for which a multiple standard has been established may be required to perform acceptably with respect to each of the components of the standard." 23 MSPR at 628. Accordingly, the MSPB rejected the employee's argument that the disputed multi-part standard was unlawful.

With respect to application of the standard, the MSPB noted that the "heart of [an] agency's case in an action taken under § 4303" is its determination that an employee had failed to perform acceptably in one or more critical elements and that in such an action, an agency is required to prove each element of its case by substantial evidence. Id. The MSPB concluded:

In cases in which an agency has demoted or removed an employee under § 4303 for unacceptable performance on fewer than all the components of a performance standard . . . , therefore, the agency must present substantial evidence that the appellant's performance warranted an unacceptable rating on the element as a whole.

Id. See also U.S. Department of the Air Force, 509th Bombardment Wing, Pease Air Force Base, New Hampshire and National Association of Government Employees, Local R1-111, 41 FLRA 1035, 1040-41 (1991). The MSPB noted that the manner in which an agency could satisfy its burden would "vary from case to case." 23 MSPR at 628.

We find nothing in Shuman that compels the conclusion that the disputed appraisal system in this case is unlawful. We reject, in this regard, the Union's argument that Shuman "stands for the proposition that failure on a component or aspect of a critical element, standing alone, is insufficient to establish failure on the critical element as a whole." Exceptions at 9. Indeed, as noted previously, the MSPB concluded in Shuman that a multi-part standard requiring acceptable performance as to all parts is not inconsistent with 5 U.S.C. § 4302 or otherwise unlawful.

Moreover, also as noted previously, neither the "content of any particular standard, nor the quality of the grievant's work" is in dispute. Exceptions at 8 n.3. Only the lawfulness of the Agency's appraisal system is in dispute in this case; the application of the system to individual employees is not. Accordingly, the portion of Shuman addressing an agency's burdens in connection with the application of multi-part standards in cases arising under 5 U.S.C. § 4303 does not apply here.(5) We reject, in this regard, the Union's argument that the "purely mechanical system . . . prevents [the] legally required analysis from every [sic] being made." Exceptions at 11. In essence, the Union asks us to determine that the disputed system could never be applied lawfully. Put simply, we have no basis on which to make this determination.

We conclude that the Union has not demonstrated that the disputed performance appraisal system is unlawful. Accordingly, we find that the Union's exceptions provide no basis for finding the Arbitrator's award deficient.

VI. Decision

The Union's exceptions are denied.

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

1. Article 12 provides, in pertinent part:

Section 5 Rating Scale

A. Annual appraisals . . . will consist of ratings . . . on each critical element. The ratings and definitions, which were established by the Employer, are defined as follows:

. . . .

4. Minimally Successful: fails one performance aspect;

. . . .

B. Each performance appraisal will include an overall rating established and determined by the Employer, as follows:

. . . .

4. Minimally Successful: employee is rated Minimally Successful in one or more critical elements.

Award at 8-9.

2. The parties agreed that the sole issue before the Arbitrator was the legality of the performance appraisal system. Neither the content of particular standards nor the grievant's work performance were disputed. See Award at 10; Exceptions at 8 n.3.

3. Among other things, 5 U.S.C. § 4302(b)(1) requires agencies to establish "performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question for each employee or position under the [performance appraisal] system[.]"

4. 5 U.S.C. § 4303 provides in pertinent part:

(a) Subject to the provisions of this section, an agency may reduce in grade or remove an employee for unacceptable performance.

5. In this connection, Nalls also addressed the application of multi-part elements and standards. In that case, the MSPB reviewed the denial of a within-grade increase based on unacceptable performance in one multi-part element, and held that the agency had failed to establish that the element was objective. The MSPB noted, citing Shuman, that even assuming that the agency had met this burdens, the agency had failed to establish that the employee's "alleged unacceptable performance on the basis of [one subelement] alone warranted a rating of unacceptable for [the] element . . . as a whole." 46 MSPR at 609 n.4.