[ v45 p997 ]
The decision of the Authority follows:
45 FLRA No. 102
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Peter J. Maniscalco 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 exception.
An employee filed a grievance contesting her 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. Accordingly, we will deny the Union's exception.
II. Background and Arbitrator's Award
On May 1, 1990, the grievant received her performance appraisal for the rating period of April 1, 1989, through March 31, 1990. The grievant received an overall rating of "fully successful." The Union filed an unfair labor practice charge claiming that the rating given to the grievant was lower than that which she should have received and was given in reprisal for the grievant's filing of a previous grievance. The parties entered into a settlement agreement on January 11, 1991, in which the Agency agreed to re-appraise the grievant for the rating period at issue. The settlement agreement reserved the right of the Union and the grievant to file a grievance over the re-appraisal.
The grievant's immediate supervisor was on sick leave for the period from approximately April 1990 to June 1990. Upon his return, the supervisor found that the supervisory notes on which he had relied to rate employees, including the grievant, had been "rifled with" during his absence. Award at 7. Upon this discovery, the supervisor destroyed his notes.
Pursuant to the January 11, 1991, settlement agreement, the grievant's immediate supervisor re-appraised the grievant's performance and destroyed the grievant's previously received performance appraisal. The grievant received her re-appraisal on January 31, 1991, in which she was again rated as "fully successful."
Believing that her rating was lower than what it should have been, the grievant filed the grievance in this matter. The grievance was not resolved and was submitted to arbitration.
The Arbitrator framed the issues before him as:
Was management's rating of the grievant's performance as "fully successful" for the rating period 4/1/89 through 3/31/90 reasonable?
Was the appraisal system deficient?
Did the Agency misapply the performance standards to [the grievant]?
Id. at 3.
Before the Arbitrator, the Union contended that the Agency had no system to properly rate the grievant or any other similarly classified employee for the rating period of April 1, 1989, through March 31, 1990. The Union argued that any rating of the grievant's performance must be supportable as well as reasonable. The Union contended that the grievant should have been rated "outstanding" or, at least, "highly successful" because no documentation existed to the contrary.
The Agency argued that the evidence established that the Agency had a performance appraisal system in accord with 5 U.S.C. § 4302 and the parties' agreement, and that the Agency applied the elements and standards in an appropriate and lawful manner. The Agency contended that there was close supervision and clarification of the performance standards. The Agency also asserted that the application of the standards to the grievant's actual performance was appropriate.
The grievant's immediate supervisor testified that it was his practice to rate the employees under his supervision based on his supervisory notes, visual observation, and the type of work the employee was performing at that time. The supervisor also kept copies of errors made by each employee during the rating period.
The Arbitrator found, based on the evidence and testimony adduced at the hearing, that there was no violation of the parties' agreement.1/ The Arbitrator concluded that the Agency's performance appraisal of the grievant was "sufficiently proven" as being "fully successful." Award at 20. The Arbitrator noted the grievant's immediate supervisor's testimony that the grievant was made aware of her errors immediately at the time those errors were committed and that her general error rate was higher than about six or seven other employees within her unit but lower than about three or four other employees in the unit. The Arbitrator also found that there was no discriminatory reprisal against the grievant.
The Arbitrator further found that: (1) there was no evidence of deficiencies in the Agency's appraisal system or misapplication of the performance standards as they pertained to the grievant; (2) there had been counseling sessions calculated to apprise the grievant of the requirements against which she would be measured; and (3) there was sufficient evidence to indicate that the Agency communicated the standards to employees.
III. Union's Exception
The Union contends that the Arbitrator's award fails to draw its essence from the parties' agreement, established rules, regulations, and the law because the Arbitrator ignored the Agency's destruction of evidence that supported the grievant's claim to a higher rating before the end of the appeal period. The Union argues that the destruction of the supervisor's notes violated the parties' agreement, which requires that such records be retained through the appeal period.2/ The Union further contends that the Agency's destruction of the supervisory notes violated 5 C.F.R. § 293.404(a)(1)(i) and (ii) and the Agency's own Records Control Schedule.3/
IV. Agency's Opposition
The Agency asserts that the Arbitrator award does draw its essence from the parties' agreement. The Agency contends that the destruction of the supervisory notes was not contrary to the provisions of the parties' agreement, 5 C.F.R. § 293.404(a)(1)(ii) or the Agency's Records Control Schedule because those provisions dictate only what documents may be retained and the allowable period of retention. The Agency further contends that the grievant's re-appraised rating occurred after the notes were destroyed, and, therefore, the notes could not have been "supporting documents" under either 5 C.F.R. § 293.404(a)(1)(ii) or the Agency's Records Control Schedule. In addition, the Agency argues that the grievant was neither subject to a personnel action nor any action detrimental to her. The Agency also contends that it was not required to retain the notes, especially when the disturbance of the notes by an unknown party made such notes incomplete.
V. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is deficient.
To demonstrate that an award fails to draw its essence from the agreement a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the agreement; or (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Office of Personnel Management, Central Office and American Federation of Government Employees, Local 32, 44 FLRA 287, 290 (1992).
The Arbitrator concluded, based on the evidence and testimony adduced at the hearing, that there was no violation of the parties' agreement. The Arbitrator specifically referred to Article 32 of the parties' agreement, which provides that a unit employee's job performance will be evaluated "on the basis of objective criteria and will be fair, reasonable, equitable and job-related." Award at 19. The Union has not shown that the Arbitrator's sustaining of the grievant's performance appraisal is in any manner irrational, implausible, unfounded, or manifestly disregards the agreement. We find that nothing in the agreement provision relied upon by the Union requires that supervisory notes must be retained and used in evaluating an employee's performance. Indeed, the agreement provision addresses only when such notes may be retained or used and does not mandate their retention or use. Accordingly, the Union provides no basis for finding that the award fails to draw its essence from the parties' agreement.
We construe the Union's contention that the Arbitrator's award fails to draw its essence from 5 C.F.R. § 293.404(a)(1)(i) and (ii) and the Agency's Records Control Schedule as an allegation that the award is deficient because it is contrary to law, rule, or regulation. We find that the Union has not established that the Arbitrator's award is inconsistent with law, rule, or regulation. With regard to 5 C.F.R. § 293.404(a)(1)(i), that section pertains only to the retention of ratings of record. Further, both 5 C.F.R. § 293.404(a)(ii) and the Agency's Records Control Schedule address the maximum time period during which documents supporting a performance rating may be retained, not whether they must be retained or used. Indeed, 5 C.F.R. § 293.404(a)(1)(ii) states that "[s]upporting documents shall be retained for as long as the Agency deems appropriate (up to 3 years)[.]" Therefore, under the cited regulations the agency retains the discretion to dispose of supporting documentation.
Insofar as the Union is arguing that the Arbitrator could not have found that the supervisor properly rated the grievant without the supporting notes, the exception provides no basis for finding the award deficient. The Arbitrator concluded that the Agency's "fully successful" performance rating of the grievant was "sufficiently proven" based on the evidence and testimony adduced at the hearing. The Arbitrator specifically relied on the grievant's immediate supervisor's testimony that the grievant was made aware of her errors immediately at the time those errors were committed and that her general error rate was higher than six or seven other employees within her unit but lower than three or four other employees in the unit. In our view, the Union is merely disagreeing with the Arbitrator's conclusion that the grievant was properly rated. Such an exception provides no basis for finding an award deficient. See 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, 651 (1991).
Accordingly, we will deny the Union's exception.
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
1/ The Arbitrator specifically referred to Article 32 of the parties' agreement, entitled "the Performance Appraisal System[,]" which provided, in part, that "[t]he performance appraisal system and the parts that make up the system as applied to the bargaining unit employees will permit the accurate evaluation of job performance on the basis of objective criteria and will be fair, reasonable, equitable and job-related." Award at 19.
2/ The parties' agreement provides that supervisory notes "'may only be retained and used beyond the appeal period of the annual performance rating to support a timely personnel action related to that rating or any timely action taken during that period.'" Exception at 3 (quoting Article 10, Section 10 of the parties' agreement).
3/ 5 C.F.R. § 293.404(a)(1)(i) and (ii) provides:
(a)(1) Except as provided in § 293.405(a), performance ratings or documents supporting them are generally not permanent records and shall . . . be retained as prescribed below:
(i) Performance ratings of record, including the performance plans on which they are based, shall be retained for 3 years;
(ii) Supporting documents shall be retained for as long as the agency deems appropriate (up to 3 years)[.]
The Agency's Records Control Schedule provides in relevant part:
Item No. 5-070.500. Supporting documents. Destroy 3 years after date of appraisal or when no longer needed, whichever is sooner.