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