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49:950(90)AR - - Army Aberdeen Proving Ground, Aberdeen Proving Ground, MD and IAM, Local Lodge 2424 - - 1994 FLRAdec AR - - v49 p950

[ v49 p950 ]
The decision of the Authority follows:

49 FLRA No. 90
















May 12, 1994


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 Mollie H. Bowers filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exception.

The Arbitrator denied a grievance concerning an unsatisfactory performance rating. For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The grievant has worked for the Agency for approximately 21 years. Until January 1992, the grievant was employed as an engineering equipment operator whose work involved the operation of engineering equipment and motor vehicles. On April 14, 1991, the grievant was arrested for driving while intoxicated during the time that he was in an off-duty status. A court upheld the charge in August 1991 and suspended the grievant's driver's license. On August 22, 1991, the grievant was informed by his supervisor that without a driver's license he would be "'unable to meet his performance plan and would be rate[d] unacceptable.'" Award at 4. Thereafter, the grievant was assigned to duties in basic labor operations that did not involve driving vehicles.

The grievant received a performance rating of "unacceptable/unsatisfactory" for the period June 17, 1991, to January 25, 1992. Id. at 5. In his performance rating, the grievant was found not to have met the performance standards for four of the five job elements because of his inability to operate engineering equipment or motor vehicles. By letter dated March 23, 1992, the "Maintenance Employee Relations Division" informed the grievant's supervisor that it was not appropriate to rate the grievant in his position of engineering equipment operator because he had not completed a minimum of 120 days of service under the performance standards for that position. Id. As a result, the supervisor informed the grievant that the rating might have to be rescinded. However the supervisor also stated that the grievant would continue to have an unacceptable rating until he was told differently. The grievant subsequently was advised by the Agency that the information contained in the March 23, 1992, letter was inaccurate and that the rating was consistent with Department of the Army Regulation 690-400, Chapter 430, Subchapter 3-6.

The Union then filed a grievance challenging the rating. When the grievance was not resolved, it was submitted to arbitration. The parties stipulated the following issues for resolution by the Arbitrator:

Whether the grievance is untimely.

If the grievance is timely, whether the Agency properly rated the Grievant and, if not, what should the remdy [sic] be?

Award at 2.

The Arbitrator initially concluded that the grievance was timely filed under the parties' collective bargaining agreement.

The Arbitrator next addressed whether the rating was issued in accordance with Article 42 of the Agreement.(*) The Arbitrator found that the Union had not shown that any provision of Article 42, or any other article of the agreement, entitled the grievant to have been "treated or rated any differently . . . ." Id. at 16. The Arbitrator acknowledged, however, that there may have been some confusion concerning the application of Army regulations, as set forth in the Agency's March 23, 1992, letter. However, the Arbitrator found that that confusion was alleviated by a subsequent Agency letter to the grievant explaining the applicability of Army Regulation 690-400, Chapter 430, Subchapter 3-6. Therefore, the Arbitrator concluded that there was nothing in the record to show that the grievant was not treated according to Army regulations, and, as noted above, no evidence that the grievant was rated "unacceptable/unsatisfactory" in violation of the agreement. Id. at 5. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exception

The Union argues that the award is deficient under the parties' agreement because the Arbitrator failed to apply Army Regulation 690-400, Chapter 430, which is referenced therein. Specifically, the Union states that that regulation requires a minimum of 120 days from "receipt of the performance plan and the end of the rating under established performance standards." Exception at 1. According to the Union, there were no performance standards established for the position to which the grievant was detailed and, further, that the grievant's job standards and description were not in compliance with the detail. The Union also states that the grievant was rated "unsatisfactory not for his performance but for the suspension of his license." Id. Without further elaboration, the Union notes that Army Regulation 690-400, Chapter 430, Subchapter 2-4b provides that: "Standards should be consistent with duties and responsibilities of the position. Standards of Conduct will not be included in performance . . . ." Id. at 2. In sum, the Union maintains that the award should be overturned.

B. Agency's Opposition

The Agency asserts that the Union's argument concerning the application of Army Regulation 690-400 addresses whether the award draws its essence from the agreement. Citing U.S. Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 43 FLRA 404 (1991) (Department of Defense, Pacific Region), the Agency contends that the Union has not demonstrated that the award fails to draw its essence from the agreement.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exception.

The Union's argument is premised on an asserted failure by the Arbitrator to apply Army Regulation 690-400, Chapter 430, as referenced in the parties' collective bargaining agreement. In Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284 (1991) (Panama Canal Commission), we stated that when a collective bargaining agreement incorporates regulations with which an award is alleged to conflict, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. Id. at 292-93. As the agreement here incorporates Army Regulation 690-400, the issue before us is whether the award draws its essence from the agreement. See also Department of Defense, Pacific Region, 43 FLRA at 409.

To demonstrate that an award fails to draw its essence from an agreement, a party 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 the 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. Id. We find that the Union has not established that the award fails to draw its essence from the parties' agreement under any of these tests.

More specifically, the Arbitrator found no evidence in the record to show that the grievant was treated in a manner inconsistent with the Army regulations. While the Arbitrator acknowledged that there was some confusion generated with respect to the applicability of Army Regulation 690-400, Chapter 430, the Arbitrator further found that the regulation subsequently was explained to the grievant. In our view, the Union has not established that the Arbitrator's interpretation of the agreement in this regard was implausible, irrational, or otherwise fails to draw its essence from the agreement. In our view, the Union is merely disagreeing with the Arbitrator's interpretation and application of the agreement. Such an exception does not provide a basis for finding the award deficient. See Panama Canal Commission, 41 FLRA at 294.

Additionally, to the extent the Union's exception raises arguments concerning the absence of performance standards for the position to which the grievant was detailed and issues concerning the grievant's job standards and description, such matters are not properly before us. Under section 2429.5 of the Authority's Rules and Regulations, we will not consider issues that could have been, but were not, presented to the Arbitrator. See, for example, U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1169 (1992). There is no evidence in the award that such matters were raised before the Arbitrator.

V. Decision

The Union's exception is denied.



Article 42 Appraisal System

Section 42.01. Introduction. This article describes the basic performance standard and performance appraisal system as it applies to the employees under the covered unit. The particulars of the system are contained in Army Regulation 690-400, Chapter 430, other laws, rules, regulations, and further supplemented by this article.

Section 42.05 Procedures. Once performance standards and critical elements are established, supervisors will assure that the standards will be fairly and equitably applied. Performance standards for identical or similar positions are normally expected to be consistent. Performance standards and critical elements shall be reduced to writing and signed by the supervisor after considering employee input. It is desired that employees sign and date performance standards and critical elements worksheets to indicate their awareness of the information. If the employee declines to sign the worksheets, the supervisor will annotate the worksheet to show that the employee declined to sign, date the worksheet, and give the worksheet original to the employee. Progress reviews will be made with the ultimate goal of improving or maintaining (Fully Successful) employee performance. The parties agree that while more frequent reviews may be desirable and necessary that a mid-year review will be made.

Section 42.06 Applications. a. The evaluation given employees by their supervisors shall be prepared in accordance with the following:

(1) The supervisor will discuss the employee's job performance with the employee in private surroundings at least at mid-year of the appraisal period.

. . . .

(3) If the supervisor has identified deficiencies in the employee's performance, the employee shall be notified when the problem is perceived. The supervisor may suggest ways for the employee to improve the quality of work in order to perform duties at the expected levels. At any time during the rating period, if the supervisor determines an employee is performing in a marginal or unsatisfactory manner, any progress review normally will be reduced to writing and a copy given to the employee. Progress reviews are not grievable until such time as they are actually relied upon in the record to effect remedial action due to unacceptable performance.

. . . .

b. Prior to the date an employee is eligible for a within-grade increase or noncompetitive promotion to the full performance grade level, the Employer will review the work of the employee. When a supervisor's review leads to the conclusion that the employee's work is not at an acceptable level of competence, the supervisor will provide to the employee in writing at least sixty (60) days before the effective date of the action:

. . . .

(2) Advice as to what the employee must do to bring the performance to an acceptable level;

(3) A statement that the employee's performance may be determined as being unacceptable unless improvement to an acceptable level is shown;

(4) A statement that the employee has at least sixty (60) calendar days in which to bring the performance up to an acceptable level[.]

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

*/ The relevant portions of Article 42 are set forth in an Appendix to this decision.