The grievant originally occupied a career-ladder position as a GS-7 logistics management specialist with non-competitive promotion potential to the GS-11 level. During her mid-point performance review, the grievant’s supervisor “concluded that she was not demonstrating sufficient progress in her work to receive a promotion to the GS-9 pay grade at the scheduled time.”^[1]  At the end of the grievant’s performance-review period, the Agency issued the grievant a “fair” or “needs improvement” rating under the Total Army Performance Evaluation System (TAPES), the Agency’s performance management system for civilian personnel.^[2] Within TAPES, the Agency rated the grievant under the TAPES Senior System (Senior System). The Agency did not promote the grievant to a GS-9 position. Instead, the Agency reassigned the grievant to a non-career-ladder GS-7 administrative-support position.

 

 

 

                Before the Arbitrator, the Union claimed that the Agency’s use of the Senior System violated Article 15 of the parties’ agreement. Article 15 states, as relevant here, that “T[APES] will be administered according to the instructions in . . . Pamphlet 690-400.”^[4] The Union alleged that Pamphlet 690-400 restricts application of the Senior System to employees at the GS-9 level or above, and that the grievant should have been rated under a different system, the Base System.  The Union also alleged that the grievant’s performance was rated “unacceptable in one or more critical elements,”^[5] and argued that the Agency violated the procedures set forth in Article 15 and applicable Office of Personnel Management (OPM) regulations that provide procedural protections for employees rated “unacceptable.”^[6] Finally, the Union claimed that “the [g]rievant was given less opportunity to improve than a similarly situated employee.”^[7]

 

The Arbitrator denied the Union’s grievance. She rejected the Union’s argument that the Agency erroneously evaluated the grievant’s performance under the Senior System. In this regard, the Arbitrator relied on a 2004 Agency memorandum (the 2004 memorandum) that provides that “all new employees hired into       career-ladder . . . positions with a target grade of GS-09 and above . . . . will be rated using the TAPES Senior System.”^[8] The Arbitrator also found that a subsequent 2005 Agency memorandum (the 2005 memorandum), that discusses the rating cycle for career-ladder employees, “does not conclude that the Base [S]ystem should supplant the Senior System for career[-]ladder employees like the [g]rievant whose target grade was above GS-09.”^[9]  Further, the Arbitrator determined that the Agency did not violate Article 15 of the parties’ agreement or OPM regulations regarding employees rated “unacceptable,” finding that the grievant was rated more highly – “marginal” – rather than “unacceptable.”^[10] Finally, the Arbitrator found that the grievant was not treated disparately because the other similarly situated employee’s “employment picture was very different than the [g]rievant’s.”^[11]       

 

 

                As part of its contrary-to-law exceptions, the Union contends that the award is contrary to the “DOD performance management policy” because it requires the Agency to provide assistance to employees with a performance rating below “fully successful.”^[13]  In addition, as part of its exceeded-authority exception, the Union argues that the award “violated” § 7117 of the Federal Service Labor-Management Relations Statute (the Statute) because the Agency had issued the 2004 memorandum on which the Arbitrator relied without bargaining with the Union as required by the Statute.^[14] 

 

                Regarding the contrary-to-law claim, the record does not demonstrate that the Union argued before the Arbitrator that the “DOD performance management policy”^[15] required the Agency to provide assistance to employees with a performance rating below “fully successful.” Because the grievant’s performance, and whether the Agency was required to provide assistance, are in dispute, the Union could have raised this argument below. As it did not, the Union may not raise the argument now.^[16]

 

Regarding the exceeded-authority claim, the Agency cited the 2004 memorandum when it argued before the Arbitrator that the Agency properly rated the grievant under the Senior System.^[17] But the record does not demonstrate that the Union argued in response that § 7117 precluded her from relying on the 2004 memorandum that the Agency cited.^[18] Consequently, because the Union could have made this argument before the Arbitrator, but did not do so, it may not raise the argument now.^[19]

 

 

                The Union argues that the Arbitrator should have found that the Agency rated the grievant under the wrong appraisal system. Specifically, the Union argues that the award is contrary to Pamphlet 690-400, which the Union alleges restricts application of the Senior System to employees at the GS-9 level or above.^[21] The Union also argues that the award fails to draw its essence from the parties’ agreement, which the Union alleges imposes the same restriction on the Agency as Pamphlet          690-400.^[22] Therefore, as the Union interprets the requirements of Pamphlet 690-400 and the parties’ agreement, the Senior System should not have been applied to the grievant.

 

                The Union claims, and the Agency does not dispute, that Article 15 of the parties’ agreement expressly incorporates Pamphlet 690-400 – the Agency regulation used to administer TAPES. When a collective-bargaining agreement incorporates the agency regulation with which an arbitration award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute.^[23] Consistent with the Union’s claim, we find that Pamphlet 690-400 is incorporated into the parties’ agreement. Accordingly, we apply an essence analysis to assess the Union’s argument.^[24]

 

                In reviewing an arbitrator’s interpretation of a collective-bargaining agreement, the Authority applies the deferential standard that federal courts use in reviewing arbitration awards in the private sector.^[25]  Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective-bargaining agreement when the appealing party establishes 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 purposes of the collective-bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement.^[26]  The Authority and the courts defer to arbitrators in this context “because it is the arbitrator’s construction of the agreement for which the parties have bargained.”^[27] 

 

                The Union asserts that Pamphlet 690-400 requires the Agency to rate employees in career-ladder positions under the Base System until they reach the GS-9 level.^[28] Therefore, the Union argues, the Arbitrator erred by finding that the Agency properly evaluated the grievant, a GS-7 employee, under the Senior System, rather than the Base System.^[29] 

 

                Pamphlet 690-400 defines the Base System, in relevant part, as the Agency’s “performance appraisal system covering employees in the following pay plans and grades: . . . GS-8 and below.”^[30] Pamphlet 690-400 defines the Senior System, in relevant part, as the Agency’s “performance appraisal system covering employees in the following pay plans and   grades: . . . GS-9 and above.”^[31] Finally, the 2004 memorandum provides, in relevant part, that “all new employees hired into career[-]ladder . . . positions with a target grade of GS-09 and above . . . . will be rated using the . . . . TAPES Senior System.”^[32] 

 

Pamphlet 690-400’s plain wording does not address which rating system covers employees in   career-ladder positions with a promotion potential at the GS-9 level and above, such as the grievant’s. Conversely, as both parties agree, the 2004 memorandum expressly directs the Agency to rate employees in   career-ladder positions with a target grade of GS-9 or above, such as the grievant’s (prior to her reassignment), under the Senior System.^[33] In these circumstances, it was not irrational or implausible for the Arbitrator to interpret Pamphlet 690-400’s requirements in light of the express requirements of the 2004 memorandum, concerning the appropriate rating system to use in evaluating the grievant. 

 

The Union’s further argument, that the          2005 memorandum “rescind[ed]” the                           2004 memorandum,^[34] also does not demonstrate that the Arbitrator erred. The 2005 memorandum does not by its terms “rescind” anything.^[35] Rather, as the Arbitrator found, the memorandum “merely announces”^[36] an “exception” to Pamphlet 690-400’s requirements “to change the rating cycle for career[-ladder] interns.”^[37] It was therefore also not irrational or implausible for the Arbitrator to reject the 2005 memorandum as useful guidance in interpreting Pamphlet 690-400’s requirements concerning the appropriate rating system to use in evaluating the grievant.

 

                Finally, U.S. Department of the Air Force, Air Force Material Command, Ogden Air Logistics Center, Hill Air Force Base, Utah (Hill Air Force Base),^[38] on which the Union relies, is inapposite. In Hill Air Force Base, the Authority discussed remedy issues relating to arbitral findings that an agency failed to properly appraise a grievant. As the Arbitrator does not find in this case that the Agency failed to properly appraise the grievant, and we do not find that the Arbitrator erred, we do not reach issues concerning the appropriate remedy. Hill Air Force Base is therefore inapposite.

 

 

 

The Union argues that the award is contrary to law because the Arbitrator failed to order the Agency to provide the grievant with procedural protections to which she was entitled by law and regulation, prior to her reassignment to the non-career-ladder GS-7 position.^[39] The Union refers in this connection to procedural protections set forth in 5 C.F.R. part 430, and related laws.^[40]

 

                When an exception involves an award’s consistency with law, the Authority reviews any question of law raised by the exception and the award de novo.^[41] In applying the standard of de novo review, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[42] In making that assessment, the Authority defers to the arbitrator’s underlying factual findings unless the appealing party establishes that those findings are deficient as nonfacts.^[43] Absent a nonfact, challenges to an arbitrator’s factual findings cannot demonstrate that an award is contrary to law.^[44]  

 

The Union premises its claim, that the grievant was entitled to procedural protections that she did not receive, on the claim that the Agency rated the grievant’s performance “unacceptable.”^[45] The procedural protections the Union seeks for the grievant are protections that agencies are required to provide employees with an “unacceptable” rating.^[46]

 

The Union’s exception lacks merit because the exception’s premise – that the Agency rated the grievant’s performance “unacceptable” – lacks support. The Arbitrator’s factual findings, which the Union does not challenge as nonfacts, make this clear. First, the Arbitrator found that “[t]he [g]rievant’s performance was not deemed unacceptable by any witness.”^[47] Second, the Arbitrator found that the Agency rated the grievant’s performance on the “Senior System [e]valuation scale as ‘fair’ or ‘needs improvement.’”^[48] Pamphlet 690-400 defines a “fair” rating in the Senior System as “Level 2 in 5 [C.F.R. part] 430.”^[49] Level 2 in 5 C.F.R. part 430 is, by definition, above Level 1, and “Level 1 is ‘Unacceptable’.”^[50] Rather, Level 2, which is “above ‘Unacceptable’” but “below ‘Fully Successful’ [Level 3]” is termed “Marginal.”^[51] The Arbitrator’s unchallenged factual findings therefore support her conclusion that the Agency did not rate the grievant “unacceptable.”  Because the Union’s premise in claiming that the grievant was entitled to procedural protections that she did not receive lacks support, we deny the Union’s          contrary-to-law exception that is based on this claim.           

 

The Union also refers to its argument “before the Arbitrator . . . that another employee was given the identical rating . . . as the grievant . . . by the same supervisor, but she was not reassigned.”^[52] However, the Union does not explain how this supports a finding that the award is contrary to law. We therefore deny this exception under § 2425.6(e)(1) of the Authority’s Regulations, because the Union fails to support its argument that the award is deficient on the ground on which the Union relies.^[53]

 

 

                The Union contends that the Arbitrator exceeded her authority by disregarding specific limitations on her authority set forth in the parties’ agreement.^[54] The Union cites Article 13, Section 7.b, which provides that “[t]he [a]rbitrator shall have no authority to alter, amend, add to or to subtract from the terms of this agreement or any agreement made supplementary hereto.”^[55]  The Union claims that the Arbitrator “changed the terms of the [parties’ agreement] by concluding [that] the Agency had effectively changed Article 15 of the agreement without bargaining.”^[56]  The Union contends that the Arbitrator erred when she found that “[t]he . . . 2004 memorandum no longer required that employees in training positions be rated in the Base System.”^[57]

                The Union’s claim is based on a misinterpretation of the award. Article 15 provides, as relevant here, that “T[APES] will be administered according to the instructions in . . . Pamphlet 690-400.”^[60] The Arbitrator did not change the terms of Article 15 when she found that the grievant’s performance was appropriately evaluated under the Senior System. Consistent with Article 15, the Arbitrator recognized that Pamphlet 690-400’s instructions determined the appropriate rating system to apply to the grievant’s performance. Thus, as discussed in section IV.A., above, when the Arbitrator found that the grievant’s performance was appropriately evaluated under the Senior System, she did not change the agreement’s terms; she simply interpreted Pamphlet 690‑400’s requirements in light of the express requirements of the 2004 memorandum. Accordingly, because the Arbitrator did not change the terms of the parties’ agreement in her award, we deny this exception.

 

 

 

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