34:0992(161)AR - - Commerce, Patent and Trademark Office and Patent Office Professional Association - - 1990 FLRAdec AR - - v34 p992



[ v34 p992 ]
34:0992(161)AR
The decision of the Authority follows:


34 FLRA No. 161

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

(Agency)

and

PATENT OFFICE PROFESSIONAL

ASSOCIATION

(Union)

0-AR-1643

DECISION

February 26, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Richard I. Bloch. The Agency filed these exceptions 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 Union filed an opposition to the exceptions.

Arbitrator Bloch found that the Agency violated Article 19 of the parties' collective bargaining agreement when it issued a revised performance appraisal plan for patent examiners. Article 19 required, among other things, that the status quo in performance appraisal matters be maintained until the Authority had issued a decision on the negotiability of Union proposals then pending before the Authority. Although Arbitrator Bloch rejected the Union's request for a status quo ante remedy, he ordered the Agency to make whole those employees who actually suffered losses as a result of the change in the rating system.

We conclude that the award is unclear as to the scope of the remedy. Therefore, we remand the Arbitrator's award to the parties for the purpose of requesting the Arbitrator to clarify his award.

II. Background

Article 19 of the parties' collective bargaining agreement, at issue in this case, was fashioned by Arbitrator Marvin Johnson in a May 1986 interest arbitration award. Article 19 provides, in relevant part:

Inasmuch as the parties have several proposals concerning performance appraisals currently pending a negotiability determination before the FLRA, negotiations concerning performance appraisal subjects affected by those proposals may be deferred until the FLRA renders its decision(s) on those proposals. . . . The parties shall negotiate over those subjects which are not affected by the negotiability issues before the FLRA. Negotiations over such subjects shall commence 45 days after the effective date of this agreement pursuant to Article 14. To the extent not inconsistent with law, government-wide regulations or the necessary functioning of the agency, the Office shall maintain the status quo in those performance appraisal matters affected by the proposals pending before the FLRA, until the FLRA issues its decision. Within 45 days after the FLRA renders its decision(s), the parties shall negotiate over the appropriate affected performance appraisal subjects. The Arbitrator shall exercise continuing jurisdiction over this subject.

On August 11 and September 29, 1986, the Agency notified the Union of its intention to implement a revised performance evaluation plan for patent examiners. The Agency claimed that the revisions in the performance evaluation plan were required by Government-wide regulations and the existing needs of the Agency. Because the parties differed over the proper subjects for negotiation under Article 19, the Union, on September 8, 1986, requested Arbitrator Johnson's assistance as "a facilitator-mediator, and, if necessary, arbitrator," to determine the proper scope of negotiations under Article 19. Award at 7.

On October 1, 1986, the Agency implemented its new performance appraisal plan and on November 26, 1986, Arbitrator Johnson denied the Union's request for intervention concluding that he lacked jurisdiction. Following the receipt of Arbitrator Johnson's ruling, the Union, on December 18, 1986, filed the grievance which is the subject of this case. On February 2, 1987, the Authority issued its decision in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987) (Patent Office Professional Association) in which the Authority found, with minor exceptions, that the Union's proposals relating to performance appraisals were nonnegotiable.

III. Arbitrator Bloch's Award

Arbitrator Bloch stated that the issue before him was whether the issuance of the revised performance appraisal plan constituted a violation of the parties' collective bargaining agreement.

Arbitrator Bloch first determined that the dispute was arbitrable. He rejected the Agency's claim that the Union's December 18, 1986, grievance concerning the Agency's October 1, 1986, implementation of the revised performance appraisal plan was untimely because it was filed well beyond the 20-day time limit established by the parties' contract. The Agency argued that the parties' contract did not relieve the Union from the obligation to timely process the grievance based on its having filed the grievance in the wrong forum. Arbitrator Bloch found that the Union had ample reason to believe it was following the proper procedure under the existing contract by filing with Arbitrator Johnson who had retained jurisdiction "over this subject." Award at 11. Arbitrator Bloch concluded that to the extent this was erroneous, it was a mistake induced by the agreement itself and, therefore, the grievance was arbitrable.

As to the merits of the Union's grievance, Arbitrator Bloch found that the revised performance evaluation plan implemented by the Agency changed the existing performance evaluation plan as follows: (1) the revised plan contained five summary appraisal levels as opposed to three levels in the old plan; (2) the revised plan contained five separate critical elements as opposed to one critical element in the old plan; (3) the revised plan contained a different number of non-critical elements than the old plan; and (4) the revised plan modified the time when reviews could be conducted of employees in lower grades. Award at 12.

Arbitrator Bloch rejected the Agency's claims that it was required to change the performance evaluation plan to conform to revisions in Office of Personnel Management (OPM) regulations and to enhance productivity. He noted that the language of Article 19 clearly prohibited changes in the performance evaluation plan absent any showing of inconsistency with law, Government-wide regulations or the necessary functioning of the Agency. Further, he concluded that the 1986 revisions in OPM regulations were of a general cosmetic nature and did not justify the nature of the revisions implemented by the Agency. Award at 17. The Arbitrator also noted that while the Agency was convinced that the new performance evaluation plan would encourage more productivity and enhance its appraisal system, such revision had been specifically prohibited by Article 19 and nothing in the law could properly be construed as requiring the changes made by the Agency. Award at 19. On that basis, the Arbitrator found that neither pertinent law nor the regulations required the changes made by the Agency.

Arbitrator Bloch also rejected the Agency's argument that the changes in the performance evaluation plan concerned matters that were nonnegotiable. According to the Agency, Article 19 obligated it to maintain the status quo only as to subjects that were negotiable. Arbitrator Bloch noted that this position of the Agency ignored the fact that the matters the Agency sought to revise were then before the Authority for a decision on precisely the issue as to whether they were negotiable. In Arbitrator Bloch's view, contending that changes involved management rights which the union had no right to negotiate involves a judgment that preempts the processes which the parties were contractually obligated to endure. Instead, the Arbitrator held that the Agency was to maintain the status quo "'in those performance appraisal matters affected by the proposals pending before the FLRA, until the FLRA issues its decision.'" Award at 14.

Finally, although the Arbitrator concluded that the Agency violated the collective bargaining agreement, he determined that, contrary to the Union's request, under the facts of this case, a status quo ante remedy was inappropriate. He noted that after the changes in the performance evaluation plan took place on October 1, 1986, the Authority issued its negotiability decision on February 2, 1987. Arbitrator Bloch stated that the Authority's rulings should provide substantial guidance to the parties concerning the areas over which they must negotiate. Further, the Arbitrator noted that the record indicated that there were only about 5 to 10 employees out of the 1,000 bargaining unit employees who might be in a position to have their rating changed so as to receive a promotion or a within-grade increase. Arbitrator Bloch concluded that under these circumstances, a more narrow remedy was appropriate. Award at 20.

Accordingly, the Arbitrator found that the Agency should make whole those employees who actually suffered losses as a result of the change in the rating system. He held that those employees who, by reasons of changes in the performance standard, suffered adverse personnel actions, such as the denial of routine salary step increases or other similar advances, should be made whole. Award at 20. The Arbitrator retained jurisdiction solely for the purpose of entertaining motions on the question of assessing counsel fees pursuant to 5 U.S.C. § 5596. Further, the Arbitrator denied requests for a remedy beyond that which was ordered or for retaining jurisdiction. Award at 21.

IV. Exceptions

The Agency states that it does not except to the Arbitrator's award to the extent that the award obligates the Agency to make whole employees who suffered as a direct result of the Article 19 violation between October 1, 1986, the date of implementation of the new evaluation plan and, February 2, 1987, the date the Authority issued its negotiability determination in Patent Office Professional Association. Exceptions at 3.

However, the Agency states that it excepts to the Arbitrator's award to the extent that the award requires the Agency to make whole any employee affected by the change in the performance evaluation plan after issuance of the negotiability decision in Patent Office Professional Association. The Agency argues that to the extent that the award applies to employees adversely affected by the changes in the performance evaluation plan after the issuance of Patent Office Professional Association, the award is inconsistent with the requirements of the Back Pay Act, 5 U.S.C. § 5596, and Authority precedent. Exceptions at 4. That is, according to the Agency, the Arbitrator's award fails to make the causal connection that "but for" the violation of Article 19, those employees would not have suffered a withdrawal or reduction of all or part of their pay or allowances.

In support of its exception, the Agency alleges that the absence of a specific termination date for the make whole remedy must be presumed as allowing backpay for affected employees for an unspecified time into the future. The Agency contends, however, that a make whole remedy applicable after the issuance of Patent Office Professional Association does not meet the tests set out in Authority precedent for a backpay award. That is, the Agency asserts that the Arbitrator made no finding that subsequent to the issuance of Patent Office Professional Association, the Agency failed to bargain with the Union concerning the impact and implementation of the new performance appraisal plan. The Agency argues further that, having failed to make a determination that an unwarranted action occurred, the Arbitrator has not established that employees were adversely affected.

In conclusion, the Agency contends that, on the basis of the Arbitrator's award, the make whole remedy cannot be construed or interpreted as extending beyond the date the Authority issued its negotiability decision. Further, the Agency contends that the Arbitrator's award should be modified by having the make whole order apply only until the time that the Authority's negotiability decision was issued.

V. Opposition

The Union contends that the Agency's exceptions are misplaced. According to the Union, the Arbitrator did not award any specific employee backpay. Rather, the Union claims that the Arbitrator made a judgment concerning liability and left open the issue of specific damages. Further, the Union notes that the Arbitrator identified a contract violation and directed compensation be granted to employees adversely affected by the contract violation. The Union asserts that the award clearly directs a remedy only for those who actually suffered losses as a result of the violative change in the rating system.

The Union rejects the Agency's claim that the Agency was free to make changes in performance appraisals after the Authority issued its negotiability decision in Patent Office Professional Association. The Union argues that the Authority's negotiability decision did not bring an end to the bargaining process. Instead, the Union contends that the cutoff point for the remedy is when the contractual and legal bargaining obligations under Article 19 are fulfilled which, according to the Union, is at the "completion of bargaining or impasse resolution relative to performance appraisal changes and proposals." Opposition at 8.

The Union also contends there is no merit to the Agency's argument that the Arbitrator failed to make the determination that the Agency failed to bargain with the Union concerning the impact and implementation of the new performance appraisal plans. The Union argues that the whole point of the Arbitrator's award is that the Agency failed to maintain the status quo by unilaterally imposing a new performance appraisal plan. In addition, the Union disputes the Agency's claim that it fulfilled its bargaining obligations under Article 19.

VI. Analysis and Conclusion

The Agency does not except to the portion of the award which relates to employees who suffered losses between the date the Agency implemented the change in the rating system and the date the Authority issued the negotiability decision in Patent Office Professional Association. The Agency asserts, however, that the award also "requires that any employee affected by the change . . . after issuance of the FLRA negotiability decision be made whole[.]" Exceptions at 4. The Agency interprets the award as requiring it to "make whole employees without regard to whether the proposals found negotiable by the FLRA and bargaining by the union on those proposals would have rendered a different result." Id.

The Union interprets the award differently. The Union asserts that the award "required a remedy to qualified employees until the time that the Agency completed its bargaining obligations under Article 19 of the contract." Opposition at 17. According to the Union:

The remedy directed by the Arbitrator depends, first, upon the agreement of