48:1091(119)AR - - Transportation, FAA, Washington, DC and National Air Traffic Controllers Association - - 1993 FLRAdec AR - - v48 p1091
[ v48 p1091 ]
The decision of the Authority follows:
48 FLRA No. 119
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
December 8, 1993
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 Richard I. Bloch filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance contesting the legality of the Agency's performance appraisal system for certain employees. For the following reasons, we conclude that the Agency has failed to demonstrate that the award is deficient. Accordingly, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency's performance appraisal system for air traffic control specialists has five rating levels for each of the specialists' job elements: outstanding, exceptional, fully successful, partially successful, and unacceptable. The Agency has one written performance standard for each element at the "fully successful" level.
The Union filed a grievance alleging that the performance appraisal system for air traffic control specialists was not objective and, therefore, violated 5 U.S.C. § 4302.(1) Specifically, the grievance alleged that the "five-tier evaluation system applied in conjunction with a single written standard at the 'fully successful' level provides no objective basis by which a reviewing official can measure performance for the two levels above or below the written standard and deprives an employee of a bona-fide opportunity to be made aware of the standards against which his/her performance will be measured." Jt. Exh. 2, Attachment to Agency's Exceptions.
When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue as follows:
Does the FAA's Performance Appraisal System violate . . . 5 U.S.C. [s]ection 4302? If so, what should the remedy b[e]?
Award at 2.
The Arbitrator stated that the Agency's five-level rating system was "presumptively contrary" to 5 U.S.C. § 4302, because it provides a written performance standard at only one of the five levels. Award at 13. The Arbitrator also stated that, consistent with Federal Personnel Manual (FPM) Bulletin 432-10,(2) and Merit Systems Protection Board (MSPB) precedent, the Agency could cure the deficiency in the system "with sufficient communication of relevant standards in a given situation." Id. at 12.
The Arbitrator found that the Agency had not issued written instructions which might have provided supervisors with guidance on rating employees at any level other than fully successful. For the two higher levels, the Arbitrator found that there was "no evidence that the Agency has any plan or that it has identified any circumstances wherein one would either define or communicate standards" for those levels to the employee. Id. at 16. The Arbitrator stated that the Agency could not "ignore the higher levels which, aside from figuring meaningfully in an employee's long-term professional advancement, also bring monetary bonuses[.]" Id. With regard to the two lower levels, the Arbitrator stated that the Agency sometimes did and sometimes did not supply a written standard for the "[p]artially-successful" level to an employee after that employee's performance had fallen below "[f]ully successful." Id.
The Arbitrator concluded that the absence of any guidelines describing performance requirements for any level above or below the fully successful level resulted in an "unlimited" exercise of supervisory discretion which was inconsistent with 5 U.S.C. § 4302. Id. at 18.(3) Accordingly, the Arbitrator sustained the grievance and ordered the Agency to establish a performance appraisal system that conforms with applicable statutory and contractual requirements.
The Agency claims that the award is contrary to law, regulation, and the FPM. The Agency argues that the performance system was "immune to further challenge" by the Arbitrator because it had been certified by the Office of Personnel Management (OPM) as meeting the requirements of 5 C.F.R. § 430.204. Exceptions at 8. The Agency also maintains that the award is contrary to the FPM Bulletin 432-10, which, according to the Agency, allows agencies with five-level rating systems and a single written standard to use "alternate forms of communication . . . to inform the employee of the performance expectations." Id. at 9. The Agency claims that it used such alternate forms of communication to inform employees of performance requirements.
The Agency also argues that the award is inconsistent with MSPB decisions interpreting 5 U.S.C. § 4302. The Agency asserts that the Arbitrator misapplied Donaldson v. Department of Labor, 27 M.S.P.R. 293 (1985) when he "declar[ed] the entire [performance appraisal] system itself invalid as it applies to the 15,000 [c]ontrollers, without receiving evidence about alternative methods of communication of performance expectations in individual cases[.]" Id. at 11. The Agency also asserts that the Arbitrator misapplied Wilson. The Agency claims that because the Arbitrator invalidated the Agency's appraisal system on the "sole basis" that the Agency did "not have standards at the higher levels[,]" the award does not conform to the holding of Wilson, which requires standards at only the "'satisfactory or acceptable' level." Id. at 12, 13. The Agency also argues that requiring the Agency to establish standards at more levels than the "satisfactory or acceptable" level is contrary to 5 C.F.R. § 430.204(e), "which provide[s] for standards at only the Fully Successful level." Id. at 13.
The Union states that the Agency has not identified a regulation which the award allegedly violates. The Union also claims that the Arbitrator correctly interpreted Donaldson and that the Agency's exceptions constitute mere disagreement with the Arbitrator's conclusions.
V. Analysis and Conclusions
We reject the Agency's contention that the award is deficient because it directs the Agency to establish standards at more levels than the "satisfactory or acceptable" level and, as such, is contrary to 5 C.F.R. § 430.204(e). Exceptions at 13. Initially, we note that the Arbitrator did not specifically order the Agency to provide written standards at levels other than those for fully successful. The Arbitrator merely found that the current rating system was invalid and directed the Agency "to establish a Performance Appraisal System that will conform with applicable statutory and contractual requirements." Award at 21. In other words, the Agency retains the discretion to determine the appropriate action necessary to establish a rating system that conforms to statutory and contractual requirements. For example, the Agency could apprise employees of performance expectations at levels above and below the fully successful level through alternative forms of communication. On the other hand, the Agency could choose to provide written standards at levels other than the fully successful level. In this latter regard, we note that, contrary to the Agency's assertions, 5 C.F.R. § 430.204(e) specifically allows agencies to provide written standards at levels other than the fully successful level.(4)
Next, we reject the Agency's claim that, because OPM had certified the Agency's performance management system, the system was "immune to further challenge" by an arbitrator. Exceptions at 8. The Agency has cited no authority for the claim, and none is apparent to us, that a performance management system which has been certified by OPM cannot be examined by an arbitrator to determine whether it conforms with law, rule, or regulation.
We also reject the Agency argument that the award is contrary to "current FPM Bulletin 432-10" which, according to the Agency, allows agencies with five-level rating systems to use "alternate forms of communication" to inform employees of the performance requirements. Id. at 10, 9. First, FPM Bulletin 432-10 expired on July 20, 1990. Second, the Arbitrator found that alternate forms of communication were not used by the Agency to apprise employees of their performance expectations for the two higher levels and were used inconsistently for the two lower levels. We conclude that the Agency's arguments constitute mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and are an attempt to relitigate this matter before the Authority. As such, no basis is provided for finding the award deficient. American Federation of Government Employees, Council 236 and General Services Administration, Region 9, 43 FLRA 982, 988 (1992).
We also conclude that the Agency has not demonstrated that the award is inconsistent with MSPB and U.S. Court of Appeals for the Federal Circuit precedent interpreting 5 U.S.C. § 4302. In particular, we reject the Agency's claim that, by declaring the entire performance system invalid, the award is inconsistent with Donaldson. The Agency has cited no authority, and none is apparent to us, for its contention that the Arbitrator was required to examine individual cases or undertake "a case-by-case examination o[f] the communication of performance expectations to each employee[.]" Exceptions at 11. It is well established that arbitrators have the authority to determine whether performance standards comply with applicable legal requirements in grievances which "allege violations of law as to conditions of employment generally." Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 630 (1987)(Newark); see also Bureau of Engraving and Printing, U.S. Department of the Treasury and Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA 380, 383 (1985). Moreover, the fact that the MSPB and the U.S. Court of Appeals for the Federal Circuit examine individual cases, such as Donaldson, "simply reflects the jurisdictional limitations of what sorts of cases can come before the MSPB and the Federal Circuit; it does not demonstrate that an inquiry by a third-party into the legal validity of performance standards can occur only in that context." Newark, 30 FLRA at 630 (emphasis in original). Consequently, this contention forms no basis on which to find the award deficient.
Finally, we reject the Agency's contention that, by requiring the Agency to provide standards at levels other than fully successful, the award is inconsistent with Wilson. As noted above, as the Arbitrator did not specifically order the Agency to provide standards at levels other than those for fully successful.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. 5 U.S.C. § 4302(b)(1) states that a performance appraisal system must provide for:
establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system[.]
2. Attachment to FPM Bulletin 432-10, states in relevant part at 12-13:
6. Q. May those agencies with five-level element rating systems which include written standards only at the "fully successful" level extrapolate more than one level below the written standard in order to give an employee a rating (or a determination) of unacceptable performance in a critical element?
A. Yes. OPM regulation 5 CFR 430.204(e) allows agencies with five-level element rating systems which include written standards only at the "fully successful" level to extrapolate more than one level below the written standard in order to give an employee a rating (or a determination) of unacceptable performance in a critical element. The important thing to remember is that the agency is required to inform the employee, at the time the employee is given an opportunity to improve, of the performance requirement(s) or standard(s) which he or she must attain in order to demonstrate acceptable performance in the position (5 CFR 432.104). This level of performance must fall between the "fully successful" or "unacceptable" levels for agencies with five-level element rating systems. See Donaldson v. Labor, 27 M.S.P.R. 293 (1985).
3. Citing Wilson v. Department of Health and Human Services, 770 F.2d 1048, 1052 (Fed. Cir. 1985), the Arbitrator stated that the MSPB "has interpreted the statutes as requiring 'standards that are sufficiently specific to provide the employee with a firm ben