21:0074(15)AR - Bureau of Prisons, Dept. of Justice and AFGE, Local 148 -- 1986 FLRAdec AR



[ v21 p74 ]
21:0074(15)AR
The decision of the Authority follows:


 21 FLRA No. 15
 
 BUREAU OF PRISONS, 
 DEPARTMENT OF JUSTICE
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 148
 Union
 
                                            Case No. 0-AR-701
 
                                 DECISION
 
                  I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Robert H. Mount filed by the Agency under section 7122(a) of
 the Federal Sector Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    A grievance was filed and submitted to arbitration claiming that
 under the established performance standards, the grievant's performance
 level with respect to all four of his job elements should have been
 rated "outstanding" rather than "exceeds." The Arbitrator observed that
 the established standards for the performance levels of "minimally
 satisfactory," "fully successful," and "exceeds" for each of the job
 elements of the grievant's position are stated in quantitative terms.
 The Arbitrator specifically noted, for example, that for the element
 pertaining to patient care, the standard for "exceeds" provides that
 there shall be no more than one instance during the rating period when
 the incumbent failed to provide adequate medical care.  The Arbitrator
 further observed that although there is no definition in the four job
 elements for the standard of "outstanding," management by regulation
 defines outstanding performance as "performance which clearly
 demonstrates a level of achievement which exceeds to an exceptional
 degree the established standards." The Arbitrator noted in this respect
 that it is proper to have no definition of "outstanding" in the
 performance standards because the use of the term "established
 standards" in the regulatory definition relates to the standards set for
 performance below the level of "outstanding." Thus, in accordance with
 the definition of outstanding performance set by management, the
 Arbitrator questioned whether the grievant's level of performance
 exceeded the established standards to an exceptional degree.  With
 respect to the grievant's level of performance, the Arbitrator rejected
 the Activity's arguments that the grievant's level of performance was
 lower than as described and appraised in his performance appraisal
 because of disciplinary actions not described in the appraisal that were
 taken against the grievant over performance-related matters.  The
 Arbitrator ruled that the performance of the grievant that must be
 evaluated under the established standards is the grievant's performance
 as specifically described and appraised in the grievant's formal annual
 performance appraisal.  With respect to the posed question of what level
 of performance exceeded to an exceptional degree the established
 standards, the Arbitrator reiterated that the established standards were
 solely quantitative.  Thus, the Arbitrator ruled that it would be
 arbitrary and capricious in such circumstances to evaluate what
 constituted outstanding performance in other than quantitative terms,
 and he consequently again rejected consideration of disciplinary actions
 against the grievant.  Because the grievant's performance as
 specifically described and appraised in his performance appraisal was
 quantitatively perfect in three of his job elements, the Arbitrator
 determined in accordance with the definition of outstanding performance
 that the grievant was entitled under the established standards to a
 rating of "outstanding" as to those three elements.  As his award the
 Arbitrator therefore ordered that the disputed annual appraisal be
 changed accordingly and that the grievant be granted any recognition
 that is normal for those so appraised.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception the Agency contends that the award is contrary
 to section 7106(a)(2)(A) and (B) of the Statute.  Specifically, the
 Agency argues that by a substitution of judgment of the Arbitrator for
 that of management in the establishment of performance standards, the
 award is contrary to management's right to direct employees and to
 assign work.
 
                       B.  Analysis and Conclusions
 
    The Authority has consistently held that proposals which
 substantively restrict management in its identification of critical
 elements of a position and establishment of performance standards are
 inconsistent with section 7106(a)(2)(A) and (B) of the Statute as
 improper interferences with management's right to direct employees and
 to assign work.  E.g., National Treasury Employees Union and Department
 of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub
 nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982);  American Federation
 of Government Employees, AFL-CIO, Local 1968 and Department of
 Transportation, Saint Lawrence Seaway Development Corporation, Massena,
 New York, 5 FLRA 70 (1981) (Proposals 1-2), aff'd sub nom. AFGE, Local
 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926
 (1983).  Similarly, the Authority has held that proposals which would,
 as their sole effect, subject management's determinations concerning the
 identification of critical elements and the content of performance
 standards to the grievance procedure and arbitral review constituted
 improper interference with management's rights.  E.g., Saint Lawrence
 Seaway Development Corporation, 5 FLRA 70 (Proposal 4).  In so holding,
 the Authority has noted that subjecting managerial evaluations
 concerning critical elements and performance standards to arbitral
 review would require an arbitrator to substitute his or her judgment as
 to how the agency should be run for that of management.  National
 Treasury Employees Union and Department of Health and Human Services,
 Region 10, 13 FLRA 732, 734 (1982), aff'd sub nom. NTEU v. FLRA, 767
 F.2d 1315 (9th Cir. 1985).  "Under the Statute, however, management has
 the right to evaluate the relative importance of job tasks and to
 formulate levels of achievement for those tasks based upon its own
 determination of the agency's operating needs, goals, and priorities."
 Id.
 
    With respect to the arbitrator's role in resolving grievances
 involving performance appraisal matters, consistent with the above
 holdings and section 7106(a)(2)(A) and (B) of the Statute, an arbitrator
 could not determine that a grievance directly challenging an agency's
 identification of job elements or establishment of performance standards
 is grievable and arbitrable.  Nor could an arbitrator render an award
 substituting his or her judgment concerning the identification of
 critical job elements and establishment of performance standards for
 that of management.  E.g., Bureau of Engraving and Printing, U.S.
 Department of the Treasury and Washington Plate Printers Union, Local
 No. 2, IPDEU, AFL-CIO, 20 FLRA No. 39 (1985).
 
    It is equally well established, on the other hand, that there is a
 duty to bargain under section 7106(b)(3) on appropriate arrangements for
 employees adversely affected by management's exercise of its authority
 under section 7106(a), e.g., actions which adversely affect employees
 taken under the performance standards established by management.  E.g.,
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 3 FLRA 784, 791-92
 (1980) (Proposal 5).  Thus, in the facts of that case, the Authority
 specifically found that the proposal in dispute merely established a
 general, nonquantitative requirement by which the application of
 critical elements and performance standards established by management
 may subsequently be evaluated in a grievance by an employee who believes
 that he or she has been adversely affected by the application of
 management's performance standard to him or her.  To that extent, the
 Authority held that the proposal was within the duty to bargain.  Under
 such a proposal the Authority noted that an employee against whom
 management takes disciplinary action for unacceptable performance may,
 in a grievance of such action pursuant to section 7121(e) of the
 Statute, raise the issue of whether the performance standards as applied
 to him or her meet the contractual requirements, i.e., the arbitrator of
 such a grievance would simply determine if the standard established by
 management as applied to the grievant complied with the "fair and
 equitable . . . " requirements of the parties' agreement.  In finding
 that proposal to be within the duty to bargain, the Authority
 specifically noted that such an arrangement did not affect management's
 discretion to determine the content of performance standards nor did it
 authorize an arbitrator to substitute his or her judgment for that of
 management as to the content of the standards.
 
    The Authority has distinguished between proposed grievance procedures
 subjecting management's identification of critical elements and
 establishment of performance standards to arbitral review and grievance
 procedures relating only to the application of such elements and
 standards to an individual employee through the appraisal process.
 Saint Lawrence Seaway Development Corporation, 5 FLRA 70 (Proposal 4).
 As has been noted, the Authority found in that case that a proposed
 procedure which provided for grievances directly challenging the
 identification of critical elements and the establishment of the
 performance standards conflicted with management's rights.  In contrast,
 however, the Authority citing AFGE Local 32, also ruled that a proposed
 extension of the grievance procedure to any action taken as a result of
 the application of performance standards to an employee appropriately
 would extend the negotiated grievance procedure to matters relating to
 the adverse affect on an employee of the exercise by management of its
 authority under section 7106 of the Statute.  In ruling that the
 application of management's elements and standards to an employee in the
 context of a performance appraisal is grievable, the Authority has
 consistently emphasized, as in the AFGE Local 32 case discussed above,
 that such a grievance would not relate to the establishment of the
 standards, because the review by an arbitrator would not preclude
 management from determining the content of the elements and standards
 and would not result in the setting of new elements and standards.
 Instead, arbitral review would simply and appropriately determine
 whether the application of the elements and standards to the employee
 through a performance appraisal complied with applicable law,
 regulation, and the parties' collective bargaining agreement.  See,
 e.g., American Federation of Government Employees, AFL-CIO, Local 3804
 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7
 FLRA 217 (1981) (Proposal 7).
 
    Consistent with the above holdings and the Statute, an arbitrator may
 resolve a grievance by an employee who believes that he or she has been
 adversely affected by management's application of performance standards
 in a performance appraisal to that particular employee.  In judging
 management's application of standards and elements to a grievant, an
 arbitrator may determine that, in the circumstances of the case,
 management has not applied the elements and standards which it had
 established to a grievant or has applied those, or other elements and
 standards, in violation of law, regulation, or an appropriate
 agreed-upon general, nonquantitative review criterion.  In such
 circumstances, an arbitrator could, for example, sustain an employee's
 grievance alleging that management had not applied the elements and
 standards which it had established or had applied those, or other
 elements and standards, in violation of law, regulation, or an
 appropriate agreed-upon general, nonquantitative review criterion.  In
 sustaining the grievance the arbitrator as a remedy could direct that
 the grievant's work product be granted the rating to which entitled
 under the standards and elements established by management or be
 reevaluated by management utilizing those standards and elements.
 Bureau of Engraving and Printing, 20 FLRA No. 39;  Social Security
 Administration and American Federation of Government Employees, SSA,
 Local 1923, AFL-CIO, 7 FLRA 544 (1982).  However, in resolving such a
 grievance, an arbitrator may not, of course, substitute his or her
 judgment for that of the agency as to the appropriateness of elements
 and standards established by management.  Further, an arbitrator may not
 conduct an independent evaluation of an employee's performance under the
 elements and standards established by management and substitute his or
 her judgment as to what should be that employee's performance evaluation
 and rating.  Bureau of Engraving and Printing.
 
    In terms of this case, as has been noted, the Arbitrator, in
 resolving the grievance claiming that under management's established
 performance standards, the grievant's performance should have been rated
 higher, expressly examined the performance standards established by
 management and the regulatory definition of outstanding performance;  he
 specifically evaluated the application of the standards established by
 management to the grievant's performance as described in his performance
 appraisal prepared by management;  and as his award he determined in
 accordance with the definition of outstanding performance and
 management's own appraisal of the grievant's performance that the
 grievant was entitled under the established standards to a rating of
 "outstanding" as to three of his job elements.  Thus, contrary to the
 Agency's contention that the award improperly interferes with
 management's right to establish performance standards, the Authority
 finds that consistent with management's rights under section
 7106(a)(2)(A) and (B) and consistent with the Authority precedent
 described above, the award has simply and appropriately applied to the
 grievant the performance standards established by management.  In this
 respect, contrary to the argument of the Agency, the Authority likewise
 finds that consistent with FDIC, Chicago, 7 FLRA 217, which identified
 the performance appraisal as constituting the application of
 management's performance standards to an employee, the Arbitrator
 properly limited his review of the grievant's performance to that which
 was specifically described and appraised in the grievant's formal annual
 performance appraisal.  Furthermore, the Authority similar to its
 decision in Social Security Administration, 7 FLRA 544, finds that the
 Arbitrator appropriately applied the established standards to the
 grievant's performance described in his appraisal based on the
 Arbitrator's determination that with the established standards stated
 solely in quantitative terms, it would be arbitrary and capricious for
 outstanding performance to be characterized in other than quantitative
 terms which precluded management's consideration of disciplinary
 actions.  In short, the grievance and the award properly relate only to
 the application of management's performance standards to the grievant.
 The award does not relate to the establishment by management of those
 standards:  it has not affected management's discretion to determine the
 content of the standards, it has not resulted in the substitution of
 judgment by the Arbitrator for that of management as to the content of
 the standards or the appraisal of the grievant's performance, and it has
 not resulted in the setting of new standards.  Accordingly, no basis is
 provided for finding the award deficient as contrary to the Statute.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    In its second exception the Agency contends that the award is
 contrary to 5 U.S.C. Section 4302.  Specifically, the Agency argues that
 the award bars the use of a nonquantitative performance standard hich is
 expressly permitted by section 4302.
 
                       B.  Analysis and Conclusions
 
    The Authority finds that the award in no manner bars management from
 establishing a nonquantitative performance standard in accordance with
 section 4302.  As has been noted, the Arbitrator in his award simply
 determined that with the standards that management had established
 stated solely in quantitative terms, it would be arbitrary and
 capricious for outstanding performance, which management had defined as
 that which exceeded to an exceptional degree the established standards,
 to be characterized in other than quantitative terms.  Consequently,
 this exception provides no basis for finding the award deficient as
 alleged by the Agency.
 
                            V.  THIRD EXCEPTION
 
                              A.  Contentions
 
    In its third exception the Agency contends that the award fails to
 draw its essence from the parties' collective bargaining agreement.  In
 support the Agency argues that the award has no basis in the parties'
 collective bargaining agreement.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that this exception constitutes nothing more
 than disagreement with the Arbitrator's findings of fact and his
 reasoning and conclusions and that consequently this exception provides
 no basis for finding the award deficient.  See, e.g., Federal
 Correctional Institution, Petersburg, Virginia and American Federation
 of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108
 (1983).
 
                           VI.  FOURTH EXCEPTION
 
                              A.  Contentions
 
    In its fourth exception the Agency contends that the award is based
 on nonfacts because it is premised on two mistaken findings of fact.  In
 support the Agency contends that the Arbitrator mistakenly evaluated the
 grievance on the basis of the grievant's performance as stated in his
 performance appraisal and mistakenly extrapolated in an arithmetic
 progression the established performance standard for "outstanding."
 
                       B.  Analysis and Conclusions
 
    As determined in the resolution of the first exception and contrary
 to the contention of the Agency, the Arbitrator properly took into
 account the performance of the grievant as stated in his performance
 appraisal, and consequently the contention of the Agency in this respect
 provides no basis for finding the award deficient.  The remaining
 contention of the Agency constitutes nothing more than disagreement with
 the Arbitrator's findings of fact and his reasoning and conclusions and
 likewise provides no basis for finding the award deficient on the ground
 that the central fact underlying the award is concededly erroneous and
 in effect is a gross mista