35:0421(55)AR - - NLRB and NLRBU - - 1990 FLRAdec AR - - v35 p421



[ v35 p421 ]
35:0421(55)AR
The decision of the Authority follows:


35 FLRA No. 55

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL LABOR RELATIONS BOARD

(Agency)

and

NATIONAL LABOR RELATIONS BOARD UNION

(Union)

0-AR-1631

DECISION

April 5, 1990

Before Chairman McKee and Member Armendariz.(1)

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Ralph C. Barnhart filed by the Agency (Board) 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 Agency's exceptions.(2)

The grievant, a GS-13 field attorney, filed two grievances alleging that the Agency had violated the parties' collective bargaining agreement by giving her "undeserved lower appraisal ratings [in 1985 and 1986] in reprisal for her protected Union activities[.]" Award at 1. The Arbitrator found that "the Agency did not have just cause to deny the Grievant a rating which qualifies her for GS-14 trial specialist" and directed the Agency "to reappraise Grievant in accord with applicable provisions of [the parties' agreement.]" Id. at 7.

The Agency contends that the Arbitrator was biased and that his award is contrary to section 7106(a)(2)(A) and (B) of the Statute. For the following reasons, we: (1) deny the Agency's exceptions to that portion of the award which requires the Agency to reappraise the grievant for 1985; and (2) set aside that portion of the award which directs the Agency to reappraise the grievant for 1986.

II. Background and Arbitrator's Award

The grievant contended that she received lower appraisals for 1985 and 1986 because of her protected Union activity as president of Local 23 of the Union. She filed two grievances which were combined and submitted to arbitration.

The Arbitrator stated that the Agency's performance appraisal system contained the following critical elements: (1) Quality; (2) Timeliness; (3) Effective Working Relationships; and (4) Efficiency in Oral and Written Communications. The grievant's final ratings for 1985 were "Fully Successful" in Critical Elements 1, 2, and 4 and "Exceeds Fully Successful" in Critical Element 3. See Exceptions, Attachment D. The final ratings for 1986 were "Fully Successful" in Critical Element 1; "Minimally Successful" in Critical Element 2; and "Exceeds Fully Successful" in Critical Elements 3 and 4. Id., Attachment E.

The grievant met the time-in-grade requirement for promotion to GS-14 at the time of the 1986 appraisal. However, because of that appraisal the grievant was not considered to be ready for a GS-14 position, even if a GS-14 position were available. The Arbitrator stated that the grievances concerned an appraisal "for a job opening which does not presently exist and which may not become available for as much as years in the future." Award at 7.

The Arbitrator referred to Article 9, Section 2(c) of the collective bargaining agreement, which provides:

Consistent with 5 USC 4302(b), performance standards will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria related to the job in question [for each employee] or position covered by this agreement.

Award at 3. The Arbitrator noted that "[t]he statutory and contractual obligation placed upon the Agency to support its evaluation of the job performance of its employees by objective criteria is a significant one." Award at 3. The Arbitrator also noted that under Article 9, Section 3 of the agreement, the employees' performance evaluations serve as a basis for decisions to promote employees for competitive bargaining unit and first-line supervisory positions. Id. at 2.

The Arbitrator commented on the Agency's performance of its statutory functions and noted criticisms of the Agency made by various authorities in the field of labor relations. He stated: "These criticisms if valid cannot excuse employee shortcomings in the performance of their statutory and administrative duties, but if the Board itself is slack in the performance of its lawful obligations such fact can serve to temper the force of Board actions with respect to its own employees." Id. at 3.

The Arbitrator described the grievant's educational and work history. He noted that she had a good academic record in law school, that she was fluent in Spanish which aided her in conducting investigations in the southwestern United States, and that she had advanced in her career with the Agency from GS-9 to GS-13 by the end of her third year. He stated that she was now seeking "a rating which will place her on the list of employees who are qualified for GS-14 trial specialist." Award at 4. The Arbitrator also observed that a regional attorney who had worked as co-counsel with the grievant on a case testified that the grievant's "litigation skills were 'excellent,' and that her written and oral communication skills were at least equal to those of GS-14 attorneys in the office and in the region." Id.

The grievant claimed that she received lower performance ratings than she deserved because of her activity on behalf of the Union. The grievant joined the Union shortly after being hired. She was elected vice president of Local 23 after approximately 1 year and was elected president the following year. She was involved in filing grievances against the Agency, including grievances which charged misconduct on the part of the Regional Director. See Award at 5. The Arbitrator stated that "[t]he actions of [the grievant] on behalf of the Union in this instance would seem more than enough to raise strong inferences of such a [retaliatory] motive on the part of [the Regional Director] as is charged here." Id. at 6.

The Arbitrator rejected the Agency's contention that the promotion of the grievant to GS-13 shortly after the filing of the grievance against the Regional Director was proof that there was no retaliation against the grievant. The Arbitrator stated that "[a] retaliatory motive may be manifested in more subtle ways than outright downgrading or an unfavorable evaluation[.]" Award at 6. He stated that the Regional Director "was clearly too astute an administrator to fall into such a trap by evaluations obviously reflecting such improper motivations." Id.

The Arbitrator found that "[t]he requirement noted above that evaluations of the job performance of Agency employees should be based upon objective criteria was hardly followed in the 1985 appraisal of the Grievant's job performance for that year." Id. The Arbitrator stated:

[The supervisor] rated the Grievant under a new system which the Agency had put in place which utilized a change in nomenclature without any substantive change in the ratings themselves. [The supervisor], however, misinterpreted the new system as requiring a rating one level lower in each category than he actually intended or judged to correctly reflect the Grievant's performance[.] When [the supervisor] learned of his mistaken interpretation of the new system and sought to correct the error, [the Regional Director] and then Assistant Regional Director, . . . refused to alter their respective appraisals based upon their reviews of [the supervisor's] unintended error. As a consequence the Grievant received a lower overall rating than she would have received otherwise. This suggests that the process whereby [the Grievant] was rated was haphazard and episodic rather than orderly and according to law and regulations.

Award at 6-7.

The Arbitrator made no findings as to whether the grievant's 1986 appraisal was done in accordance with applicable legal requirements.

The Arbitrator concluded his award as follows:

The Arbitrator holds that on the basis of the entire record before him, the Agency did not have just cause to deny the Grievant a rating which

qualifies her for GS-14 trial specialist. The grievance is sustained and the Agency is directed to reappraise Grievant in accord with applicable provisions of Article 9 of the General Counsel of the NLRB and the NLRB Union [agreement].

Award at 7-8.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is deficient because the Arbitrator was biased against the Agency. The Agency points to statements made by the Arbitrator concerning the National Labor Relations Board and his reference to a book criticizing the Board's decisions. The Agency contends that the Arbitrator approached his decisions on the grievances "with a predisposition against the Office of the General Counsel based on his view of the Board's decisional law." Exceptions at 6. The Agency states that "[n]ot only was this unfair to the Office of the General Counsel, which is not responsible for the Board's decisions, it did not reflect fair consideration for the applicable performance standards." Id.

The Agency also contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency maintains that the Arbitrator failed to apply the appropriate performance standards and instead substituted his own standards, such as considering the grievant's law school academic record. The Agency states that the parties' agreement "prohibits the use of non-job related criteria in making performance assessments." Exceptions at 7. The Agency contends that the award does not show in what way any ratings are inconsistent with the performance standards. According to the Agency, the Arbitrator made no findings on factual matters such as whether the grievant met timeliness requirements. The Agency maintains that "the Arbitrator substituted his own standard, 'just cause' [which] was not raised by either of the parties and is not appropriate in view of the Grievant's established performance plan." Id. at 7-8.

The Agency disagrees with the Arbitrator's finding that there was confusion and error in the application of revised standards in the 1985 appraisal. The Agency contends that the appraisal was properly reviewed by higher management officials based on their personal knowledge and understanding of the performance standards. The Agency also disagrees with the Arbitrator's reliance on testimony by a regional attorney that the grievant's "written and oral communication skills were at least equal to those of GS-14 attorneys in the office and in the Region." Exceptions at 9, quoting from Award at 4. The Agency maintains that the testimony of the regional attorney did not concern all the relevant critical elements of the grievant's position and that reliance on that testimony constitutes a comparative assessment of the grievant's performance with other employees rather than a comparison of her performance with the established performance standards.

The Agency asserts that the Arbitrator's order to reappraise the grievant should be set aside because it does not comply with the remedial authority of arbitrators under Authority precedent. The Agency maintains that "the Arbitrator did not make findings with regard to whether management applied the established elements and standards correctly." Exceptions at 10. The Agency further contends that the Arbitrator failed to find any violation of law, regulation, or the collective bargaining agreement on the part of higher level management officials who finally approved the grievant's ratings.

B. Union's Opposition

The Union contends that the Arbitrator did not approach the case with a predisposition against the Agency. The Union contends that in referring to the criticisms of the National Labor Relations Board, the Arbitrator was merely indicating that he would "attach no presumptions simply because of the Agency's mission" and that he would "enter the case with complete neutrality." Union's Brief at 3.

The Union also contends that the Arbitrator's reference to the grievant's law school academic record was not improper. The Union states that the Arbitrator referred to the grievant's academic record only "to find some objective standard to gauge these inexplicable fluctuations in her ratings" and that it was "not unreasonable for the Arbitrator to use the practical experience of the outside world to put the application of the Agency's standards into context." Union's Brief at 4.

The Union asserts that the Arbitrator did not err when he considered the testimony of the regional attorney that the grievant's skills were equal to those of GS-14 attorneys in the Region. The Union maintains that some comparison of ratings received by employees is appropriate to permit examination of whether performance standards have been consistently applied. The Union also denies that the Arbitrator was substituting his own standards. According to the Union, "[i]n a case when the issue is whether the Grievant was given a lower rating and denied a promotion for a discriminatory reason, the Arbitrator must look to see whether other similarly situated employees received similar ratings under similar situations." Union's Brief at 6-7.

IV. Analysis

A. The Arbitrator Was Not Biased Against the Agency

In order to show that an arbitrator was biased against a party to a proceeding, the party must substantiate that: (1) the arbitrator's award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator was guilty of misconduct by which the rights of any party were prejudiced. Veterans Administration, Winston-Salem, N.C. and American Federation of Government Employees, Local 2880, 27 FLRA 44 (1987).

The Agency has failed to substantiate that the Arbitrator's conduct in the case meets any of the above criteria. In particular, there is no basis in the record on which to conclude that the Arbitrator's statements concerning the decisional law of the National Labor Relations Board and his reference to a book critical of that law evidence bias against the Agency. Therefore, we reject the Agency's exception that the Arbitrator was biased.

B. The Consistency Of The Arbitrator's Award With Section 7106(a)(2)(A) and (B) of the Statute

In Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1160-62 (1988) (Social Security Administration), the Authority held that an arbitrator may cancel performance ratings only when the arbitrator determines that: (1) management has not applied the established elements and standards; or (2) management has applied the established elements and standards in violation of law, regulation, or a properly negotiated provision of the parties' collective bargaining agreement. An award which cancels a performance rating without making the above findings is deficient because it violates management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See U.S. Army Transportation Center, Ft. Eustis, VA and National Association of Government Employees, Local R4-106, 33 FLRA 391 (1988), in which the Authority set aside an award raising the grievant's performance appraisal because, among other reasons, the arbitrator failed to find that management did not apply the established elements and standards or that management applied the established elements and standards in violation of law, regulation, or the collective bargaining agreement.

The Arbitrator's award ordered the Agency to reappraise the grievant in accordance with applicable provisions of the parties' collective bargaining agreement. We conclude that insofar as the Arbitrator's award relates to the 1985 appraisal, it is not contrary to section 7106(a)(2)(A) and (B) of the Statute. Accordingly, we deny the Agency's exceptions to that aspect of the award. We also conclude that the Arbitrator failed to make the requisite findings needed to set aside the 1986 performance evaluation. Therefore, we find the award to be deficient insofar as it concerns the 1986 evaluation, and set aside that aspect of the award.

1. The 1985 Appraisal

The Arbitrator made the proper findings needed to cancel the grievant's appraisal for 1985 and to order the grievant reappraised. The Arbitrator found that the grievant's performance in 1985 was not appraised in accordance with the collective bargaining agreement and other applicable requirements.

The Arbitrator noted the Agency's obligation under Article 9 of the collective bargaining agreement "to support its evaluation of the job performance of its employees by objective criteria[.]" Award at 3. That portion of the agreement restates the requirement of 5 U.S.C. § 4302(b) that "each performance appraisal system shall provide for -- (1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question for each employee or position under the system[.]"

The Arbitrator found that "[t]he requirement noted above that evaluations of the job performance of Agency employees should be based upon objective criteria was hardly followed in the 1985 appraisal of the Grievant's job performance for that year." Award at 6. The Arbitrator found that the established standards were not correctly applied because of the confusion of the grievant's supervisor over the appropriate level of grading after the standards were changed. The Arbitrator concluded that "[a]s a consequence the Grievant received a lower overall rating than she would have received otherwise." Award at 7. The Arbitrator also stated that "the process whereby [the grievant] was rated was haphazard and episodic rather than orderly and according to law and regulations." Id.

We conclude that these statements by the Arbitrator constitute findings that the grievant's performance in 1985 was not appraised in accordance with the collective bargaining agreement and other applicable requirements. We do not agree with the Agency that the Arbitrator changed the established standards or that he imposed new standards. Rather, the Arbitrator found that, as to the 1985 appraisal, the established standards were not applied in accordance with the parties' agreement and other applicable requirements.

Because the Arbitrator found that the grievant's performance in 1985 was not appraised in accordance with the collective bargaining agreement and other applicable requirements, the Arbitrator properly ordered the Agency to reappraise the grievant in accordance with the agreement as a remedy for that contractual violation. See Social Security Administration Headquarters Offices and American Federation of Government Employees, Local 1923, AFL-CIO, 33 FLRA 143 (1988) (Authority modified award to provide for grievant's reappraisal in accordance with requirements of agreement); Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA 335 (1988), reconsideration denied 32 FLRA 1235 (1988) (arbitrator's remedy ordering the grievant to be reevaluated is consistent with remedial authority of arbitrators in performance appraisal cases).

We reject the Union's contention that the award requires that the grievant be rated well-qualified for the GS-14 level on reappraisal. See Opposition at 5-6. The Arbitrator's award requires only that the Agency "reappraise Grievant in accord with applicable provisions" of the parties' collective bargaining agreement. Award at 7. Therefore, we agree with the Agency that the Arbitrator's award does not require the Agency to grant the grievant any particular rating on reappraisal of the 1985 evaluation or require the Agency to determine that the grievant is eligible for reclassification to the GS-14 level.

2. The 1986 Appraisal

We conclude that the Arbitrator failed to make the findings required by Social Security Administration as to the 1986 appraisal. The Arbitrator did not find that the 1986 appraisal violated the parties' agreement or other applicable requirements. In contrast to the Arbitrator's discussion of the 1985 appraisal, there was no discussion or finding by the Arbitrator as to whether or in what manner the 1986 appraisal violated law, regulation or the collective bargaining agreement.

An arbitrator's award requiring a grievant to be reappraised must contain the findings necessary to uphold the award. We will not attribute these findings to the award. See Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 806 (1988) (Order Denying Request For Reconsideration), in which the Authority noted that in its original decision it had addressed the findings an arbitrator must make in order to cancel a performance rating and concluded that the arbitrator did not make the required findings.

Because the Arbitrator canceled the 1986 appraisal without making the required findings, that aspect of the award is deficient as contrary to section 7106(a)(2)(A) and (B) of the Statute. Accordingly, we will set aside that aspect of the Arbitrator's award concerning the 1986 appraisal.

V. Decision

The award is modified to provide that the Agency is directed to reappraise the grievant for 1985 in accordance with applicable provisions of Article 9 of the parties' collective bargaining agreement. The award is set aside insofar as it directs the Agency to reappraise the grievant for 1986.




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

1. Member Talkin did not participate in this decision because of the particular circumstances surrounding this case, which arose during her tenure as a manager at the National Labor Relations Board.

2. The Agency also requested a stay of the award when it filed its exceptions to the award with the Authority on October 17, 1988. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.

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