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46:0435(35)AR - - NAGE, Local R14-52 and Red River Army Depot, Texarkana, TX - - 1992 FLRAdec AR - - v46 p435

[ v46 p435 ]
The decision of the Authority follows:

46 FLRA No. 35





LOCAL R14-52








(45 FLRA 934 (1992))



October 30, 1992


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Union's request for reconsideration of our decision in 45 FLRA 934 denying the Union's exceptions to the award of Arbitrator Harry Weisbrod. The Agency filed an opposition to the Union's request.

For the reasons discussed below, we grant the Union's request and remand the award to the parties for resubmission to the Arbitrator for clarification.

II. Background

In the grievance involved in 45 FLRA 934, the Union asserted that the grievant's performance rating on a certain critical element (No. 1) should have been "exceeds" rather than "met" and that the performance standard for the element was invalid.(1) The Arbitrator found, as relevant here, that the disputed standard was valid and that the Union failed to establish that the grievant's performance had exceeded the standard. The Union filed exceptions to the award with the Authority and argued, among other things, that the standard for the disputed element was invalid.

In 45 FLRA 934, we found that the grievant was not evaluated on the standard the Union asserted was invalid. We found that, as applied by management, the grievant was required under the standard to "process requests for parts with only one instance of untimeliness in 30 emergency requisitions." Id. at 936. We concluded that the Union had not established that, as applied, the disputed standard was invalid and, accordingly, we denied the Union's exceptions.

III. Request for Reconsideration

The Union asserts that the Authority erred in concluding that the disputed standard, as applied to the grievant, was different from the written standard. In this regard, the Union claims that the Authority incorrectly concluded that the standard for a different critical element (No. 2) was the standard for the disputed element.

The Agency agrees with the Union that the Authority erred in concluding that a standard applicable to a different element applied to the disputed element. However, the Agency claims that, notwithstanding the error, the Union has not shown that the disputed standard is invalid and that, on the merits, the Authority should deny the Union's exceptions to the award.

IV. Analysis and Conclusions

A. Request for Reconsideration

Section 2429.17 of the Authority's Rules and Regulations provides that a party that can establish "extraordinary circumstances" may move for reconsideration of a final decision or order of the Authority. We find that the Union has established extraordinary circumstances in this case.

In 45 FLRA 934, we relied on a copy of the grievant's performance appraisal, submitted by the Union, to conclude that, as applied to the grievant, the standard for the disputed element differed from the standard as written. It is now clear, from an examination of an attachment to the Union's request for reconsideration, that the original attachment was not completely copied. In particular, the original attachment did not include critical element numbers, on the extreme left margin of the document.

A party filing exceptions to an arbitration award is required to include "[a] legible copy of the award of the arbitrator and legible copies of other pertinent documents." 5 C.F.R. § 2425.2(d). We admonish filing parties to examine documents submitted with exceptions to ensure that the documents are complete and legible. However, as the Union submitted a legible copy of the pertinent document and failed only to ensure that the extreme left margin of the document was copied, we will not dismiss the request for reconsideration on this ground.

It is clear from the attachment to the Union's request for reconsideration, and not disputed by the Agency, that the Authority applied a wrong standard to element no. 1. As this error was a basis on which the Authority denied the Union's exceptions, we will grant the Union's request for reconsideration and address its argument that the standard for element no. 1 is invalid.

B. Merits

Before the Arbitrator, the Union asserted that the standard for element no. 1 was "unreasonable, unrealistic, and unobtainable." Award at 6. The Arbitrator noted the Union's assertion that, as applied, the standard required 99.96 percent accuracy. Although the Arbitrator concluded that the disputed standard was valid, the Arbitrator stated that, "[h]ad the issue been the removal of the Grievant . . . [he] would not have hesitated in ruling in her favor." Id. at 7.

The Union argues that the Arbitrator erred. According to the Union, "an invalid performance standard remains an invalid performance standard regardless of the context in which this argument is used." Exceptions at 4 (emphasis in original). The Agency asserts that the disputed standard is valid because it "allows for an employee to exceed the element and for more than one instance of poor performance" before an adverse action would be taken. Opposition to Request for Reconsideration at 2.(2)

In reviewing removal actions based on unacceptable performance, the MSPB determines whether disputed performance standards comply with applicable law and regulation, including 5 U.S.C. §4302(b)(1).(3) For example, Walker v. Department of the Treasury, 28 MSPR 227, 229 (1985) (Walker). In this regard, the MSPB requires that performance standards be "reasonable, realistic, [and] attainable." Id. at 227. Applying this standard in Walker, the MSPB found invalid a performance standard that required employees to achieve approximately 99.5 percent efficiency in processing correspondence to retain employment. See also Lewis v. Department of the Army, 38 MSPR 91, 95 (1988) (finding invalid a standard requiring 98 percent accuracy); Blain v. Veterans Administration, 36 MSPR 322, 325 (1988) (finding invalid a standard requiring 99.91 percent accuracy). A standard that is not reasonable, realistic, and attainable is invalid as a basis for measuring performance.

The Union argues, and the Agency does not dispute, that the disputed standard requires 99.96 percent accuracy. In this regard, the Arbitrator stated that, "[h]ad the issue been the removal of the [g]rievant[,]" he would "not have hesitated in ruling in her favor." Award at 7. However, the Arbitrator did not expressly conclude that the standard was valid. Accordingly, it is unclear whether the Arbitrator found it unnecessary to consider the validity of the performance standard because the grievance did not concern a removal or whether the Arbitrator concluded that the standard would be invalid in the context of a removal proceeding but was not in the case before him. With respect to the latter point, we are aware of no basis, and none is asserted, on which to conclude that an otherwise invalid performance standard is rendered valid if its application does not result in a removal. See also Walker, 28 MSPR at 231 (MSPB held that "the requirement of near perfection" failed to "provide a reasonable basis for rewarding an employee[.]").

We are unable to determine from the award whether, or on what basis, the Arbitrator considered the validity of the disputed performance standard. Accordingly, we will remand this matter to the parties to permit them to obtain a clarification of this matter from the Arbitrator. See 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 (1991).

V. Order

The Union's request for reconsideration is granted. The Authority's decision in 45 FLRA 934 is rescinded and the award is remanded to the parties for resubmission to the Arbitrator consistent with this decision.

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

1. The performance standard for element no. 1 requires an employee to:

[r]eceive[] requests for durable items, . . . with no more than 1-2 instances per rating period where durables were not received on a timely basis due to fault of incumbent.

Attachment to Union's Exceptions.

2. In its opposition to the Union's exceptions, the Agency argued that the grievance is not arbitrable under the parties' collective bargaining agreement. The Agency's contention constitutes an exception to the Arbitrator's award. Because the Agency's exception was not filed within the time period applicable to the filing of exceptions, it will be dismissed. See American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs Medical Center, Richmond, Virginia, 39 FLRA 1045, 1047 (1991) (dismissing an untimely exception included in a party's opposition).

3. 5 U.S.C. § 4302(b)(1) provides that agencies are responsible for:

establishing 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 . . . .