[ v45 p411 ]
The decision of the Authority follows:
45 FLRA No. 32
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 Roger P. Kaplan 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 did not file an opposition to the Union's exceptions.
The Arbitrator determined that the Agency did not violate the parties' collective bargaining agreement or Agency guidelines when it delayed the grievant's advancement in the apprenticeship program as a result of her performance appraisals. The Arbitrator denied the Union's grievance.
For the reasons that follow, we conclude that the Union has failed to show that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant began work for the Agency in October 1988 as an Apprentice Pipefitter, WT-02, under NAVSHIPYRDNORIST
(Agency Instruction) 12410.25B, which establishes policy and procedures and assigns responsibilities for the administration of the Agency's apprentice training program. Under this program, "[a]pprentices are eligible to advance by promotion to the next wage rate on completion of the training requirements of each 26[-]week period of the apprenticeship with a performance rating of satisfactory or better on all critical performance elements." Agency Instruction 12410.25B at 3.*/ In October 1989, the grievant was promoted to the WT-03 wage level.
In December 1989, the grievant was assigned a new first-line supervisor who supervised the grievant through May 1990. On February 9, 1990, the supervisor gave the grievant a satisfactory rating of 80 for the quarter ending December 22, 1989. In April 1990, the supervisor gave the grievant a marginal rating of 72 for the quarter ending March 30, 1990.
On April 24, 1990, the Apprentice Training Supervisor, after consultation with the grievant's immediate supervisor, issued the grievant a "Notice of Trend Toward Unacceptable Work Performance." Award at 5. The notice stated that the grievant's quarterly appraisal for the quarter ending March 30, 1990, was below the satisfactory level for acceptable work performance that the grievant was required to maintain throughout the 26-week rating period. The notice further stated that the grievant's "promotions [were] being withheld until such time as [her] performance again reached the 'fully successful' or 'satisfactory level.'" Id. at 6. The notice also stated that the grievant would be rated during a 4-week period beginning April 24, 1990, and was "expected to improve [her] performance to at least the 'fully successful' or 'satisfactory' level." Id. at 7. The notice concluded by stating that the failure to improve to this level "will result in further delay of [the grievant's] promotions . . . ." Id. During this special evaluation period, the grievant received an interim satisfactory rating of 77. However, the grievant's final rating on May 24, 1990, dropped to a marginal rating of 75. As a result of this final rating, the grievant's promotion in the apprenticeship program to the WT-04 level was delayed by several months.
*/ All relevant provisions of the Agency Instructions and the parties' collective bargaining agreement are found in the Appendix to this decision.
All of the marginal performance ratings given to the grievant by her first-line supervisor were grieved. As a remedy, the grievance requested that the Agency promote the grievant to the WT-04 level as of April 1990. The grievance was not resolved and was submitted to arbitration on the following stipulated issues:
1. Were [the grievant's] monthly appraisals fairly executed and in conformance with the [Agency] guidelines and the [c]ollective [b]argaining [a]greement?
2. If not, what is the remedy?
Id. at 1.
The Arbitrator stated that the grievance "protests the failure of . . . [the grievant's first-line supervisor] to give [the grievant] a fully satisfactory performance appraisal so she could timely advance in her apprenticeship . . . ." Id. at 5. The Arbitrator noted the supervisor's testimony that in his performance rating of the grievant's work for the quarter ending December 22, 1989, "he could not adequately rate her work because of the short period of time he had been her supervisor." Id. at 8. According to the Arbitrator, the first "documented appraisal" after the supervisor had an opportunity to review the grievant's work was for the quarter ending March 30, 1990, in which the supervisor gave the grievant an "overall" marginal rating of 72. Id. The Arbitrator noted the supervisor's statement that, from January 1990 through May 1990, the grievant "was not performing at a fully satisfactory level to warrant her promotion . . . ." Id.
Further, the Arbitrator pointed out that the supervisor testified that the grievant "spent time away from her job, which prevented her from successfully completing her tasks." Id. The Arbitrator also noted that the supervisor testified that the grievant "was marginal in conformance to quality standards." Id. at 9. The Arbitrator found that, apart from the grievant's failure to perform her work in a satisfactory manner, "[n]o evidence was adduced to indicate any reason as to why [the grievant's supervisor] would want to hold [her] back from advancement[.]" Id. at 10.
The Arbitrator rejected the Union's assertions that, during the grievant's second-quarter appraisal period, the grievant's supervisor failed to conduct progress reviews and to use the proper criteria--in particular, the Performance Appraisal and Review System (PARS)--in considering the grievant for advancement as required by Agency Instruction 12340.1D. Specifically, the Arbitrator found that conversations between the grievant and her first-line supervisor concerning factors which prevented the grievant from successfully completing her objectives constituted progress reviews. The Arbitrator stated that because the grievant's performance "never dipped into the unsatisfactory range," her supervisor was not required to "document her performance in writing during the evaluation period." Id. The Arbitrator also found that the training supervisor advised the grievant a month prior to the grievant's final rating on May 24, 1992, that she needed to improve her performance. Further, with respect to the Union's contention that the Agency had used improper criteria in considering the grievant for advancement, the Arbitrator stated that the grievant's first-line supervisor "had every right to consider whether [the grievant] completed all tasks assigned to her" and "to consider [the grievant's] attitude in his determination of her overall performance." Id. The Arbitrator noted that "according to [Agency] regulations, promotions are not automatic." Id. at 11.
The Arbitrator found that "the Union has failed to show that management officials improperly denied [the grievant] an advancement in her apprenticeship in May, 1990." Id. at 9-10. The Arbitrator made the following award:
1. Management's monthly appraisals of [the grievant] were fairly executed;
2. Management did not violate the [c]ollective [b]argaining [a]greement or the [Agency's] regulations in delaying [the grievant's] advancement in the apprenticeship program;
3. The grievance is denied.
III. Union's Exceptions
The Union excepts to the Arbitrator's award on three grounds. First, the Union contends that "the award is
contrary to law and/or regulation." Exceptions at 1. Specifically, the Union argues that the award is contrary to Agency Instructions 12410.25B and 12430.1D. The Union points out that the grievant received a satisfactory
first-quarter rating of 80 and a marginal second-quarter rating of 72. The Union claims that, in accordance with Agency Instruction 12410.25, the grievant should have received an average satisfactory grade of 76 for the 26-week rating period. The Union maintains that Agency Instruction 12410.25B "clearly states that '[n]umerical average grades of 76 - 85 on quarterly appraisals for the rating period['] [are] satisfactory." Id. at 2 (emphasis deleted). The Union argues, therefore, that the denial of grievant's promotion to the next level was "unjustified." Id. Further, the Union asserts that the award is contrary to Agency Instruction 12430.1D because the Agency failed to conduct a PARS evaluation as required by that regulation.
Second, the Union contends that the award does not draw its essence from the parties' collective bargaining agreement. The Union notes that Article 2, section 1 of the agreement requires the Agency "to administer the Apprentice Program in accordance with the laws, rules and regulations." Id. The Union further notes that Article 11, section 4 states that "[t]he Employer agrees that the Shipyard's Apprentice Program will be administered in accordance with the FPM [Federal Personnel Manual], CPI [Civilian Personnel Instruction], Shipyard instructions and other official documents." Id., Enclosure 3. The Union claims that the Arbitrator erred in his interpretation of Article 11, section 4 when he found that there was no violation of the negotiated agreement.
Third, the Union contends that the award is based on a nonfact. The Union argues that the Arbitrator based his award on the Agency's erroneous rating of the grievant in determining that the grievant's promotion should be delayed. Specifically, the Union claims that the Arbitrator's finding that the grievant "'failed to demonstrate her satisfactory performance to [her first-line supervisor] by May 24, 1990'" is erroneous. Id. (quoting Award at 2). The Union asserts that the grievant's overall performance rating for the 26-week rating period should have been satisfactory, rather than marginal. The Union argues that the rating used by the Agency was a 13-week rating, rather than the 26-week average rating required by Agency Instruction 12410.25B.
IV. Analysis and Conclusions
A. The Union Fails to Establish that
the Award is Contrary to Rule or Regulation
Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of Veterans Affairs, Medical Center, Atlanta, Georgia and National Federation of Federal Employees, Local 2102, 44 FLRA 427, 432 (1992) (citing U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990)). We find that the Union has not shown that the Arbitrator's award conflicts with a governing Agency rule or regulation.
The Union claims that the award is deficient because, under Agency Instruction 12410.25B, the Agency was required to give the grievant an average satisfactory grade of 76 for the 26-week rating period. The Union asserts that an average grade of 76 for the rating period demonstrates satisfactory performance and that, therefore, the denial of the grievant's promotion to the next level was unjustified. To support this assertion, the Union relies on Enclosure (1) of the Agency Instruction, which is used "to evaluate overall apprentice performance." Agency Instruction 12410.25B at 3.
Initially, we note that Agency Instruction 12410.25B states that "[p]romotions are not automatic." Id. (emphasis in original). Further, the regulation states that when an apprentice's performance is rated marginal, "promotions or advancement will be discontinued and a reasonable time will be given for improvement." Id. Following the grievant's second-quarter marginal rating of 72, the Agency notified the grievant that her grade was below "acceptable work performance" standards and provided the grievant an opportunity during a 4-week special evaluation period to improve her performance to the satisfactory performance level. Award at 5-6.
We find that, notwithstanding the Union's assertion that the grievant had an overall average performance rating of satisfactory for the 26-week rating period, the Union has not shown that the Agency was precluded under Agency Instruction 12410.25B from withholding the grievant's promotion until such time as her marginal second-quarter performance rating improved to the satisfactory performance level. Further, the Union has not shown that the Arbitrator's award is contrary to Agency Instruction 12410.25B on the basis that the award upholds the Agency's decision to delay the grievant's promotion until such time as her second-quarter marginal performance improved to the satisfactory level.
The Union also claims that the award is contrary to Agency Instruction 12430.1D because the Agency failed to conduct a PARS evaluation. We note that the Arbitrator specifically found that the Agency did not use improper criteria when rating the grievant and that the Agency conducted progress reviews as required by PARS. We find that the Union has not shown that the Agency acted improperly under Agency Instruction 12430.1D.
Accordingly, we find that the Union's contention that the award is contrary to law or regulation provides no basis on which to find the award deficient. Rather, in our view, the Union is merely disagreeing with the Arbitrator's conclusion that the Agency did not violate its regulations in delaying the grievant's advancement in the apprenticeship program. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Veterans Affairs, Medical Center, Chillicothe, Ohio and American Federation of Government Employees, Local 1631, 44 FLRA 628, 630 (1992).
B. The Union Has Not Demonstrated that the Award
Fails to Draws Its Essence from the Agreement
The Union asserts that the award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award fails to draw its essence from the agreement, the Union must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 40 FLRA 644, 649 (1991) (Social Security Administration).
The Union has not demonstrated that the Arbitrator's award is deficient under any of these tests. The Union argues that the award is contrary to Article 11, section 4, which provides, in relevant part, that "the [Agency's] apprentice program will be administered in accordance with the . . . Shipyard instructions . . . ." Exceptions, Enclosure 3. As found above, the Union has not shown that the Arbitrator's award is contrary to an Agency rule or regulation. Accordingly, we find no basis on which to conclude that the Arbitrator's interpretation of Article 11, section 4 is implausible, irrational, or unconnected to the wording of the agreement. As such, the Union has not demonstrated that the award fails to draw its essence from the agreement.
C. The Union Has Not Established that the
Arbitrator's Award Is Based on a Nonfact
The Union contends that the award is based on a nonfact because the Arbitrator relies on the Agency's erroneous performance rating of the grievant to determine that the grievant should not have been timely promoted to the next wage level. Specifically, the Union claims that the Arbitrator's finding that the grievant "failed to demonstrate her satisfactory performance to [her first-line supervisor] by May 24, 1990" is erroneous. Exceptions at 2 (quoting Award at 11). We will find an arbitration award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, Social Security Administration, 40 FLRA at 650. We find that the Union has not established that the Arbitrator's award is based on a nonfact.
The Union claims that because the Arbitrator did not find that the grievant's overall performance rating was a satisfactory rating of 76, the Arbitrator improperly concluded that the Agency did not violate the parties' agreement or Agency regulations in delaying the grievant's promotion. However, even assuming that the grievant's overall rating was a central fact underlying the award and that the Arbitrator erred in not finding that the grievant's overall performance rating was a satisfactory rating of 76, the Union has not shown that, but for the Arbitrator's erroneous finding, the Arbitrator would have reached a different result.
As noted above, the Arbitrator found that under Agency Instruction 12410.25B, "promotions are not automatic." Award at 11. Further, we also noted the Arbitrator's finding that the Agency's extension of the grievant's rating period to give her an opportunity to improve her marginal second-quarter performance, thereby delaying her promotion, was in accordance with Agency regulations. Moreover, in rejecting the Union's first exception, we found that the Union has not shown that the Agency was precluded under Agency regulations from delaying the grievant's promotion until such time as her second-quarter marginal performance improved to the satisfactory level.
Consequently, because the Union has not shown that the Agency was required under its regulations to base its decision to promote the grievant on the grievant's overall performance rating alone, the Union fails to establish that the Arbitrator would have reached a different result even if he had found that the grievant's overall rating was a satisfactory rating of 76. Accordingly, the Union has not shown that the Arbitrator's award is deficient because it is based on a nonfact. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 214 (1991) (the union failed to show that award was deficient on the grounds of nonfact because, among other things, the union failed to establish that, but for the arbitrator's alleged misapprehension of the duration of the grievant's suspension, he would have reached a different result).
The Union's exceptions are denied.
NAVSHIPYRDNORIST 12410.25B, subject matter Apprentice Program, provides in relevant part (emphasis in original):
7. General Requirements for Promotion
a. Satisfactory Performance. Apprentices are eligible to advance by promotion to the next wage rate on completion of the training requirements of each 26[-]week period of the apprenticeship with a performance rating of satisfactory or better on all critical performance elements. A promotion is effected at the beginning of the first pay period after an apprentice attains eligibility. A new 26[-]week period begins on the date an apprentice is promoted to a higher scheduled wage rate. Promotions are not automatic. All training for each rating period should be completed by the fifth month to ensure adequate time to process the promotion.
b. Marginal Performance. Marginal performance denotes improvement is needed. Under this condition promotions or advancement will discontinue and a reasonable time will be given for improvement. If at the end of the specific period the apprentice's performance is still marginal his/her rating will become unsatisfactory.
c. Unsatisfactory Performance. Unsatisfactory performance denotes work is unacceptable. Under this condition promotions or advancement will discontinue and a reasonable time will be given for improvement. Failure to bring performance to a satisfactory level will result in removal from the program. Enclosure (1) will be used to evaluate overall apprentice performance. The Apprentice School Administer will forward to the shop superintendent, via the supervisory training instructor (STI), the report of academic progress of each apprentice. The supervisory training instructor (STI) will prepare and forward to the Apprentice School Administrator any marginal or unsatisfactory trade theory and work performance appraisals.
[NAVSHIPYRDNORIST 12410.25B--Enclosure (1)]
. . . .
Satisfactory Numerical average grades of 76 - 85 on quarterly appraisals for the rating period.
Marginal Numerical average grades of 70 - 75 on quarterly appraisals for the rating period.
. . . .
NOTE: Shops will notify apprentice after first quarter progress review of less than 70. If the apprentice's rating remains below 70 as a result of the second quarterly rating, he/she will be removed or terminated. In the case of apprentices with marginal rates at the conclusion of the first quarter, reasonable time will be allowed for improvement. A subsequent rating of marginal or unsatisfactory will result in the overall performance being rated unsatisfactory. At this point, one additional period will be given to bring performance to the satisfactory level, failure to do so would result in a final rating of unsatisfactory performance and removal or termination from the program.
. . . .
Example: (2) WT-2 level - 1st quarter rating 75 (Marginal)
2nd quarter rating 73 (Marginal)
148 divided by 2 =
74 = (Marginal)
Example: (3) WT-2 level - 1st quarter rating 75 (Marginal)
2nd quarter rating 74 (Marginal)
149 divided by 2 =
74.5 = (Marginal)
NOTE: As this constitutes two continuous rating periods of less than satisfactory performance, the apprentice receives an overall rating of unsatisfactory and an opportunity and assistance to improve will be provided.
NAVSHIPYRDNORIST 12430.1D, subject matter Performance Appraisal and Review System (PARS), provides in relevant part:
. . . .
b. "Appraisal Period" - The period of time established for which an employee's performance will be evaluated and for which a performance rating will be given. Employees will be given a performance rating on an annual basis except as otherwise provided by this instruction. The minimum period for the annual appraisal will be 90 days.
. . . .
d. First[-]Level Supervisors will:
. . . .
(5) Conduct progress reviews:
(a) At least once midway during the appraisal cycle (more often if appropriate) inform the employee of the level of performance by comparison with the performance elements and standards established for the position. A RATING OF RECORD IS NOT ASSIGNED AT THIS TIME IF THE LEVEL OF PERFORMANCE IS MINIMALLY SUCCESSFUL OR ABOVE. Only the immediate supervisor and the employee will sign and date the performance appraisal form to indicate that the review was conducted. A copy will be provided to the employee upon request.
. . . .
9. Performance Appraisal
. . . .
c. Summary Rating
. . . .
(5) Employees whose performance is below the "Fully Successful" level must receive appropriate assistance to enable them to perform at the "Fully Successful" level. Appropriate assistance may include formal training, on-the-job training, closer supervision, counseling . . . , etc. A summary of the assistance to be provided to the employee will be given to him/her in writing.
10. Performance Recognition
a. General. Covered activities will use PARS performance appraisals and ratings of record as the basis for advancing an employee in the pay range[.]
Article 2 of the parties' collective bargaining agreement, entitled "Provisions of Laws and Regulations," provides in relevant part:
Section 1. It is agreed and understood that in the administration of all matters covered by this Agreement, officials and employees are governed:
a. by existing or future laws, executive orders, and statutes, and by government-wide rules and regulations of appropriate authorities;
b. by published Department of Defense and Navy Department regulations in existence at the time the Agreement was approved;
c. by applicable regulations of appropriate authorities, such as the Federal Labor Relations Authority; and
d. by subsequently published agency policies and regulations required by law.
The provisions of this section will apply to all supplemental, implementing, subsidiary, or informal agreements between the parties.
(If blank, the decision does not have footnotes.)