50:0096(18)AR - - Air Force, Sacramento Air Logistics Center, McClellan AFB, CA and AFGE, Local 1857 - - 1995 FLRAdec AR - - v50 p96

[ v50 p96 ]
The decision of the Authority follows:

50 FLRA No. 18










LOCAL 1857





January 6, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Ronald Hoh 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 exceptions.

The Arbitrator denied a grievance challenging a performance appraisal.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a Union representative, is appraised under an individual performance plan that consists of nine performance elements. The plan provides that the employee will meet the requirements of eight of these elements if the employee has no major infractions, defects or complaints during the rating period and no more than 2-4 documented minor infractions, defects or complaints.

The grievant received a rating of "fully successful" on all nine individual performance elements for the appraisal period ending June 30, 1993. His total score was 45, which fell in the mid-range of possible ratings. The grievant complained about the rating. After acknowledging that the grievant had spent a considerable portion of the rating period performing Union-related activities, the parties agreed to resolve the complaint by reappraising the grievant for a different rating period. The rating for this new period was higher than the initial rating on all the individual performance elements and included a rating of "above fully successful" on four of the nine elements. The grievant attained a total score of 58.

The grievant filed a grievance disputing the new rating. When the grievance was not resolved, it was submitted to arbitration, under an expedited arbitration procedure, on the following stipulated issue:

1. Was the grievant appropriately rated in accordance with Article 15 of the [Master Labor Agreement] and applicable regulations?

2. If not, what shall the remedy be?

Award at 1.

Before the Arbitrator, the Agency claimed that the grievant had difficulty adjusting to his regular duties and learning new work procedures after performing his Union activities. The Agency defended the new appraisal on the basis of the grievant's failure to complete certain work assignments on time or at all. The grievant disputed these assertions.

As an initial matter, the Arbitrator found that the Union had the burden of proof to establish that the grievant's new rating violated the parties' collective bargaining agreement, law, and regulations. The Arbitrator determined that the grievant was "appropriately rated in accordance with Article 15 of the parties' Master Labor Agreement (MLA) and applicable regulations."(1) Id. at 5. In reaching this conclusion, the Arbitrator rejected the Union's argument that the grievant should have received a rating above the "fully successful" level on all the performance elements because the Agency had not documented any infractions against him. The Arbitrator noted that the performance plan provides for a rating of "fully successful" on a performance element when there are "no more than two minor defects or infractions" documented against the grievant. Id. at 4 (emphasis in original). The Arbitrator found that it was proper to rate an employee "fully successful" on a performance element even when there are no infractions documented against that employee.

The Arbitrator also rejected the Union's argument that the Agency had not measured the grievant's performance against the elements in his performance plan. The Arbitrator found no evidence that the grievant's rating was based on anything other than the Agency's view of his work performance. The Arbitrator further found a "complete absence of evidence" that the Agency was arbitrary or capricious in determining the grievant's rating levels and no evidence that the Agency was motivated by ill will, bias, or discrimination. Id. at 5.

Accordingly, the Arbitrator denied the grievance.

III. Exceptions

A. Union's Contentions

The Union contends that the Agency improperly relied on the grievant's Union activities in determining his new rating. The Union notes that section 7102 of the Statute protects the right of employees to participate in a labor organization. The Union also argues that the Arbitrator ignored violations of various provisions of Article 15 of the parties' agreement relating to the application of the performance plan in a fair and valid manner, assisting the grievant in maximizing his performance, and applying the performance standards against the performance elements.

Attached to the Union's exceptions are three unsworn statements prepared by two witnesses and one observer at the arbitration hearing purporting to set forth facts presented in that proceeding. The statements discuss the testimony with respect to the grievant's performance.

B. Agency's Opposition

As a preliminary matter, the Agency requests that the Authority not consider the three statements attached to the Union's exceptions because they were not presented to the Arbitrator. In support, the Agency cites section 2429.5 of the Authority's Rules and Regulations.(2) As to the merits of the Union's exceptions, the Agency disputes the Union's recitation of the facts and legal conclusions and its contention that the Arbitrator ignored violations of various provisions of Article 15 of the parties' agreement.

IV. Analysis and Conclusions</