45:0997(102)AR - - VA Regional Office, St. Louis, MO and AFGE Local 2192 - - 1992 FLRAdec AR - - v45 p997

[ v45 p997 ]
The decision of the Authority follows:

45 FLRA No. 102









LOCAL 2192




August 31, 1992

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