26:0582(70)AR - Federal Grain Inspection Service and National Council of Federal Grain lnspection Locals, AFGE Local 3769 -- 1987 FLRAdec AR



[ v26 p582 ]
26:0582(70)AR
The decision of the Authority follows:


 26 FLRA No. 70
 
 FEDERAL GRAIN INSPECTION SERVICE
 Activity
 
 and
 
 NATIONAL COUNCIL OF FEDERAL GRAIN 
 INSPECTION LOCALS, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, 
 LOCAL 3769
 Union
 
                                            Case No. 0-AR-1229
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This case is before the Authority on exceptions to portions of the
 award of arbitrator John F. Caraway filed by the Activity under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.  /*/
 
                  II.  Background and Arbitrator's Award
 
    A number of grievances were filed and submitted to the Arbitrator
 challenging the propriety of a reduction-in-force (RIF) at the Activity
 which placed a number of employees on a six-month furlough.  As relevant
 to the exceptions before the Authority in this case, the Arbitrator in
 paragraph II of his award resolved the grievances of Mr. Betts and Mr.
 Monroe who both claimed that they should not have been released and
 placed on furlough.
 
    Grievant Betts claimed that he should have received a performance
 appraisal rating at the next higher level for the element of commodity
 grading, and that if he had been properly appraised, he would have been
 retained over another employee who was not furloughed.  The Arbitrator
 first determined that the grievance was timely.  On the basis of
 testimony of union witnesses who testified that they would have rated
 the grievant at the next higher level for commodity grading, the
 Arbitrator further determined that this grievant's rating was incorrect.
  In agreement with the testimony of the union witnesses, he concluded
 that Grievant Betts should have been rated at the next higher level and
 should have been retained over the other employee.  As his award
 resolving this grievance, the Arbitrator in paragraph II. A. ordered
 that this grievant be made whole under the Back Pay Act, 5 U.S.C. 5596,
 for all wages lost as a result of his erroneous furlough.
 
    Grievant Monroe claimed that he should not have been furloughed
 because another employee was retained who had an unsatisfactory
 performance appraisal.  He maintained that under civil service
 regulations the other employee should have been released, and that if
 the other employee had been released, Grievant Monroe would have been
 retained.  The Activity argued before the Arbitrator that under the
 civil service regulations which applied at the time of the RIF, the
 employee with the unsatisfactory rating was not required to be released
 because there was no written decision removing or demoting this employee
 because of unacceptable performance.  Instead, the Activity had detailed
 him to another position.  The Arbitrator determined under applicable
 civil service regulations and a memorandum of understanding restating
 these regulations that this employee should have been released and that
 Grievant Monroe should have been retained until his subsequent
 separation.  As his award resolving this grievance, the Arbitrator in
 paragraph II. B. ordered that this grievant be made whole under the Back
 Pay Act for all wages lost as a result of his erroneous furlough.
 
            III.  Exceptions to Award Resolving Betts Grievance
 
    A.  Contentions
 
    In its first exception, the Activity contends that the award is
 deficient by finding the grievance to be timely.  In its other
 exception, the Activity contends that the award is contrary to section
 7106(a)(2)(A) and (B) of the Statute because the Arbitrator substituted
 his judgment for that of management as to what the grievant's
 performance evaluation should have been.
 
    B.  Analysis and Conclusions
 
    The Activity's exception that the award is deficient by finding the
 grievance timely provides no basis for finding the award deficient and
 is denied.  For example, Naval Air Station, Oceana and Tidewater
 Virginia Federal Employees Metal Trades Council, AFL-CIO, 10 FLRA 20
 (1982).  However, we conclude that the Arbitrator's determination with
 respect to the appraisal of the grievant's commodity grading performance
 is deficient as contended by the Agency.
 
    In Social Security Administration, Office of Hearing and Appeals,
 Region II and American Federation of Government Employees, Local 1760,
 21 FLRA No. 86 (1986), we found that the arbitrator's determination that
 management's appraisal of the grievant violated the parties' collective
 bargaining agreement was deficient.  Under the terms of the Statute and
 Authority precedent, we indicated that in these cases arbitrators must
 confine themselves to an assessment of whether management applied the
 established performance standards to the grievant in the performance
 appraisal and, if so, whether that application complied with applicable
 requirements of law, regulation, or the collective bargaining agreement.
  See Office of Hearings and Appeals, slip op. at 3-5 and cases cited in
 the decision.  We further indicated that when arbitrators do not confine
 themselves to such assessments, their determinations cannot support an
 award of backpay under the Back Pay Act.  Slip op. at 5.
 
    Applying these principles in this case, we find that the Arbitrator's
 determination that the grievant's performance appraisal for commodity
 grading was "incorrect" is deficient.  The Arbitrator did not confine
 himself to an assessment of whether the application of established
 standards to the grievant was in accordance with applicable
 requirements.  Instead, he determined that the rating was incorrect
 because union witnesses testified that they would have rated the
 grievant at the next higher level.  Furthermore, by concluding that the
 grievant should have been rated at the next higher level, the Arbitrator
 improperly conducted an independent evaluation of the grievant's
 performance and improperly substituted his judgment for that of
 management as to what the grievant's performance evaluation should be.
 See Office of Hearings and Appeals, at 3-7 and cases cited in the
 decision.  Consequently, the Arbitrator's determination is contrary to
 section 7106(a)(2)(A) and (B) and cannot provide a basis for an award of
 backpay.  Id. at 7.  Accordingly, paragraph II. A. of the Arbitrator's
 award ordering backpay for Grievant Betts is deficient and must be set
 aside.
 
            IV.  Exception to Award Resolving Monroe Grievance
 
    A.  Contentions
 
    The Activity contends that the award is contrary to Government-wide
 civil service regulations which applied at the time of the RIF.
 Specificially, the Activity argues that the Arbitrator erred by
 determining that the employee with the unsatisfactory rating under the
 Activity's performance appraisal system, which at the time of the
 appraisal and the RIF had been approved by the Office of Personnel
 Management (OPM), was required to be released from the competitive level
 before Grievant Monroe.  The Activity maintains that once the appraisal
 system has been approved by OPM, only employees with written decisions
 of removal or demotion based on unacceptable performance must be
 released before any general order of release.
 
    B.  Analysis and Conclusions
 
    We find that the award determining that Grievant Monroe should not
 have been furloughed is contrary to provisions of 5 CFR part 351 and
 Federal Personnel Manual (FPM) chapter 351 which applied at the time of
 the disputed RIF in June 1985.
 
    At the time of the RIF, 5 CFR Section 351.602 (c) prohibited the
 release of a competing employee from a competitive level while retaining
 in that level an employee with a written decision under 5 CFR part 432
 of "removal or demotion from the competitive level because of
 unacceptable performance." Also at the time of the RIF, and as quoted
 and applied by the Arbitrator in his award, FPM chapter 351, subchapter
 3-2 prohibited releasing a competing employee while retaining an
 employee with "an 'unsatisfactory' performance rating or a written
 decision of removal or reduction-in-grade based on 'unacceptable
 performance.'" The Arbitrator acknowledged that there had been no
 written decision to remove or demote the employee who concededly had
 been rated unsatisfactory.  However, under subchapter 3-2, he determined
 that even though there was no written decision of removal or demotion,
 the Activity was prohibited from releasing Grievant Monroe while
 retaining the unsatisfactory employee.  We conclude that this
 determination is deficient because these provisions were mutually
 exclusive:  whether a written decision to remove or demote was necessary
 depended on whether the performance appraisal system under which
 employees were appraised had been approved by OPM as meeting the
 requirements of 5 U.S.C. section 4302 and 5 CFR part 430.
 
    As was set forth in greater detail in FPM chapter 351, subchapter
 2-9d, whether employees with unsatisfactory ratings had to be released
 before other employees was dependent on the status of the performance
 appraisal system under which such employees were appraised.  If the
 agency's performance appraisal system at the time of the appraisal and
 the RIF had not been approved by OPM, the agency would have been
 prohibited from releasing any competing employees while retaining an
 employee with a performance rating of unsatisfactory.  FPM chapter 351,
 subchapter 2-9d(1) (July 7, 1981).  If the agency's performance
 appraisal system had been approved by OPM as meeting all applicable
 requirements, the agency would have been prohibited from releasing
 competing employees only while retaining an employee with a written
 decision under 5 CFR part 432 of removal or demotion for unacceptable
 performance.  FPM chapter 351, subchapter 2-9d(2)-(3) (July 7, 1981).
 
    The record in this case established that the unsatisfactory employee
 had been appraised under a performance appraisal system that had been
 approved by OPM.  Under the provisions governing the RIF in June 1985,
 the Activity was only prohibited from releasing Grievant Monroe while
 retaining an employee with a written decision of removal or demotion for
 unacceptable performance.  As acknowledged by the Arbitrator, there had
 been no written decision to remove or demote the employee who had been
 rated unsatisfactory.  Thus, the Arbitrator's determination that this
 employee should have been released and that the grievant should have
 been retained is deficient as contrary to civil service regulations and
 consequently cannot provide a basis for an award of backpay.
 Accordingly, paragraph II. B. of the Arbitrator's award ordering bac