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47 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

and

GENERAL SERVICES ADMINISTRATION

(Agency)

0-AR-2356

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DECISION

May 4, 1993

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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 Marsha M. Saylor 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 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 exceptions.

II. Background and Arbitrator's Award

The grievant is employed by the Agency as a journeyman chemist. Prior to November 18, 1991, the grievant worked under the supervision of Motoshi Yamasaki. The grievant was then transferred, at his request, to another branch where he worked under the supervision of Milena Stoszek. On March 30, 1992, the grievant was advised that his annual performance rating for the period ending February 29, 1992, was at level 1, which corresponded to a rating of unacceptable. As to the individual critical elements, the grievant was rated as unsatisfactory on elements 1, 3, and 4. The grievant did not agree with the rating, whereupon the Union filed a grievance. The grievance was not resolved and proceeded to arbitration. The parties stipulated the following issue before the Arbitrator: "Was the [g]rievant's performance at the satisfactory level? If so, what should the remedy be?" Award at 1.

Initially, the Arbitrator addressed whether the grievance was timely filed. The Arbitrator concluded, based on the parties' agreement and the date on which the grievant received his performance appraisal, that the grievance was timely filed.

As to the merits of the grievance, the Arbitrator found that the Agency had supported its evaluation of the grievant. In reaching this result, the Arbitrator rejected the argument that the grievant was rated based on new elements and standards that were not in effect during the rating period. Instead, the Arbitrator found that the grievant was properly rated under the elements and standards that were provided to him at the beginning of his rating period.

The Arbitrator also addressed and rejected an argument that the grievant should have been given a performance improvement plan (PIP) prior to being rated unacceptable. After referencing the portions of the parties' agreement pertaining to the issuance of a PIP, and noting more particularly an Agency regulation governing the issuance of PIPs, the Arbitrator found that there was no requirement to place an employee on a PIP prior to that employee receiving an unacceptable rating. Rather, the Arbitrator found that a PIP is required before an employee can be demoted or discharged for unacceptable performance, neither of which was involved in this case.⁽¹⁾ The Arbitrator further found that the grievant had been advised in November 1991 that his performance was not satisfactory.

Finally, the Arbitrator addressed the Union's argument that because the grievant had received an acceptable rating during the annual appraisal period, the annual rating should of necessity be higher than a level 1. The Arbitrator found that the acceptable rating had been given to the grievant in settlement of a grievance over the Agency's failure to grant the grievant a within-grade increase. The Arbitrator found that the fully satisfactory rating was an interim rating, covered a 3-month period, and was for purposes of the within-grade only. However, the Arbitrator further found that even if the 3-month rating were factored into the grievant's annual performance, it would not change the overall rating of unacceptable. The Arbitrator also found that the minimum appraisal period for the grievant was 90 days and that the grievant had been under the supervision of his current supervisor, who had rated him unacceptable, for a longer period of time. Accordingly, the Arbitrator denied the grievance.

III. First Exception

A. Positions of the Parties

1. Union

The Union argues that the award violates law because the Arbitrator refused "to recognize that the Union prevailed on behalf of the [grievant]" in obtaining the grievant's within-grade increase and that "the interim rating given him should have been the one used in determining his rating[.]" Exceptions at 2. According to the Union, 5 C.F.R. § 531.404 specifies that an employee can receive a within-grade increase only when it is determined that that employee is performing at an acceptable level of competence which, in this case, would correspond to a level 3. The Union points out that the grievant was transferred to his present position with an interim rating of level 3 and, as a result, the grievant's annual rating should have been higher than a level 1.

2. Agency

The Agency contends that the interim rating was for a 3-month period only and was in settlement of a prior grievance. In addition, the Agency argues that the Arbitrator correctly found that because the grievant's performance was unsatisfactory for 90 days, a fact the Union does not contest, the grievant was required to be rated as unsatisfactory without regard to the interim rating.

B. Analysis and Conclusions

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

The provisions of 5 C.F.R. § 531.404 relate to the granting of within-grade increases. The thrust of the Union's argument is that because the granting of a within-grade increase is contingent on an acceptable level of performance, and the grievant was granted a within-grade increase during the current appraisal period, the grievant's overall rating must be higher than the rating that was given. The Arbitrator found that even if the rating supporting the within-grade increase were considered, the overall rating of unacceptable would be unaffected. In addition, the Arbitrator found that the grievant was only required to be evaluated based on his performance for a 90-day period and that when so evaluated, the grievant's performance was unacceptable. In our view, nothing in the award establishes that it is inconsistent with law. Consequently, the Union's exception provides no basis for finding the award deficient. See for example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 46 FLRA 1126, 1131-32 (1993).

III. Second Exception

A. Positions of the Parties

1. Union

The Union argues that the award fails to draw its essence from the agreement because the Arbitrator relied on an Agency regulation, namely the Performance Management Handbook, rather than provisions of the parties' agreement that govern the issuance of PIPs.⁽²⁾ The Union points to provisions of the agreement that essentially provide that if there is a conflict between an Agency regulation and an agreement provision, the agreement prevails. The Union further argues that if the Arbitrator had followed the agreement, the Arbitrator would have found that the grievant's rating period would have been extended 60 days; the supervisor would have been required to schedule a performance review; and the supervisor would have been required to develop a written PIP. The Union further asserts that the Arbitrator exceeded her authority by deciding this case solely on the basis of the Handbook.

2. Agency

According to the Agency, the Union's exception is predicated on the view that the agreement required the issuance of the PIP prior to the grievant receiving an unacceptable rating. The Agency argues, however, that the language of the agreement cited by the Union "merely requires supervisors to develop written PIP's [sic] for unsatisfactory performers." Opposition at 2.

B. Analysis and Conclusions

We conclude that the award does not fail to draw its essence from the agreement and that the Arbitrator did not exceed her authority.

The Authority previously has determined that collective bargaining agreements, rather than agency regulations, govern the disposition of matters to which they both apply. See U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 194 (1990). Insofar as the parties' agreement and the Agency's Handbook both address the issuance of PIPs, the provisions of the agreement would be dispositive.

The Authority also has stated that in order to find an award deficient because it fails to draw its essence from a collective bargaining agreement, the party making such an allegation must demonstrate 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 purpose of the agreement as to manifest an infidelity to the arbitrator's obligation; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See for example, U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1211 (1991). The Union has not demonstrated that the award fails to draw its essence from the agreement under any of these tests.

In its exceptions, the Union argues that the Arbitrator would have reached a different conclusion in this case had she applied Article 19, Sections 5C, 5D, and 6E. According to the Union, three things would have happened had those provisions been applied: the rating period would have been extended 60 days; the supervisor would have scheduled a performance review; and the supervisor would have been required to develop a PIP. For the following reasons, we find that the Union has not established that the award is deficient. Instead, the Union is merely disagreeing with the Arbitrator's interpretation and application of the agreement. Such an exception provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, National Immigration and Naturalization Service Council, Local 2012 and U.S. Immigration and Naturalization Service, Eastern Region, 45 FLRA 329, 334 (1992).

Starting with Article 19, Section 6E, it is apparent that the Arbitrator found that that section did not apply in this case. Section 6E allows for an extension of the rating period when an employee has not been advised of a decline in performance. By its terms, the section applies when an employee's overall performance drops from fully successful or higher to less than fully successful or when an employee's summary rating falls from outstanding to fully successful. There was no finding that the grievant's performance had fallen from a fully successful or higher level to less than fully successful or that the grievant's summary rating had fallen in the manner described in Section 6E. Rather, the Arbitrator found that the grievant's overall performance was minimally successful before falling to unacceptable. The Arbitrator further found that the 3-month interim rating did not count as an overall rating. Consequently, the Arbitrator essentially found inapplicable the provisions of Section 6E. The Union has not established that the Arbitrator's interpretation of that section was irrational, implausible, or unconnected with the wording of the agreement.

Similarly, the Union has not established that the Arbitrator's interpretation of Section 5C fails to draw its essence from the agreement. Section 5C requires a performance review when an employee's performance falls below the fully successful level. In this case, the Arbitrator found that the grievant had, in fact, been given a performance review. Therefore, the Union fails to establish that the Arbitrator's interpretation of that agreement provision is irrational, implausible, or unconnected with the wording of the agreement.

Finally, Section 5D of the agreement provides that the supervisor will develop a written PIP if a review reveals unsatisfactory performance. According to the Union, the Arbitrator's failure to find that the supervisor was required to develop a written PIP demonstrates that the award fails to draw its essence from the agreement. We do not agree. In denying the grievance, the Arbitrator rejected the Union's contention that the grievant should have been given a PIP prior to being rated unacceptable. The Union has not demonstrated that Section 5D or any other provision of the agreement required the issuance of a PIP prior to the grievant being rated unacceptable. Indeed, of the provisions relied on by the Union in its exceptions, the only provision addressing the issuance of a PIP relative to the timing of a performance rating is Article 19, Section 6E. That section, as stated above, is not applicable here. Insofar as the agreement is otherwise silent with respect to the time at which a PIP must be given to an employee whose performance is unacceptable, we cannot conclude that the Arbitrator's award is irrational, implausible, or unconnected with the wording of the agreement.

In addition, we find no merit to the Union's exception that the Arbitrator exceeded her authority. An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680, 685 (1991). The Union has not established, and it is not otherwise apparent to us, that the Arbitrator exceeded her authority when she interpreted the parties' agreement and denied the grievance.

IV. Third Exception

A. Positions of the Parties

1. Union

The Union asserts that the award is based on a nonfact to the extent that the Arbitrator found that the grievant was given a performance review in November, 1991. The Union argues that the grievant was transferred in November 1991 to a supervisor who accepted the grievant "without any deficiency." Exceptions at 6. Therefore, the Union claims that the grievant was not given a review.

2. Agency

The Agency claims that the Arbitrator's observations regarding the manner in which the grievant was advised of performance deficiencies do not establish that the award was based on a nonfact.

B. Analysis and Conclusions

The Authority will find an award deficient under the Statute because it is based on a nonfact if the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Local 2532, 42 FLRA 890 (1991). In recognizing this ground as a basis on which an arbitration award may be found deficient, the Authority has advised that the appealing party should demonstrate that the arbitrator not only erred in the view of the facts, but that the sole articulated basis for the award was clearly in error and that the evidence discloses a clear mistake of fact but for which, in accordance with the expressed rationale of the arbitrator, a different result would have been reached. See for example, General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039 (1992).

The Arbitrator rejected the Union's contention that the Agency failed to inform the grievant that his performance was unsatisfactory. Instead, the Arbitrator found that the grievant was advised in November 1991 that his performance was not satisfactory. The Union has not established that this finding was erroneous. Consequently, we find that the Union has not established that the award is based on a nonfact.

V. Decision

The Union's exceptions are denied.

APPENDIX

Article 19, Section 5C.

At any time an employee's overall performance falls to below the fully successful level, or if the summary rating level falls from Outstanding to Fully Successful, the supervisor will schedule a review and notify the employee of the drop in performance.

Article 19, Section 5D.

If a review reveals unsatisfactory performance, the supervisor will develop a written performance improvement plan in accordance with Section 7A of this Article if he or she has not already done so.

Article 19, Section 6E.

If an employee's overall performance has dropped during the rating period from fully successful or higher to less than fully successful, or if the summary rating level falls from Outstanding to Fully Successful, the supervisor will issue the appropriate annual rating of record only if the employee was advised of the decline in performance, in accordance with Section 5C or 5D, above, at least sixty (60) days prior to the end of the rating period. If the employee was not so advised, the employee's rating period will be extended to allow 60 days from the time he or she is advised of the decline until the end of the rating period.

Article 19, Section 7A

At any time a supervisor determines that an employee is not performing at an acceptable level in one or more critical elements, the supervisor will develop a performance improvement plan. . . .

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

1. The record indicates that the grievant was given a PIP in May 1992 "and remained on the rolls during the PIP period." Award at 5.

2. The text of relevant provisions of the collective bargaining agreement is found in the Appendix to this decision.

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