37:0470(33)AR - - NTEU Chapter 243 and Commerce, Patent and Trademark Office, Arlington, Virginia - - 1990 FLRAdec AR - - v37 p470

[ v37 p470 ]
The decision of the Authority follows:

37 FLRA No. 33













September 21, 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 M. David Vaughn filed by the Agency 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.

The grievance concerns the Agency's decision not to reinstate the grievant to her former position of Application Clerk, GS-5 and the application of a Memorandum of Understanding (MOU) between the Agency and the Union resolving a prior grievance involving the grievant. The Arbitrator found that the Agency violated the settlement agreement by failing to provide the grievant a "bona fide opportunity to demonstrate acceptable performance" in the Application Clerk position and ordered that the grievant be given another "opportunity to demonstrate acceptable performance as an Application Clerk." Award at 14.

We conclude that the Agency has failed to establish that the award is deficient on any of the grounds set forth in section 7122 of the Statute. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant was downgraded by the Agency from the position of Application Clerk, GS-5 to the position of File Clerk, GS-4. The downgrade was in mitigation of the grievant's proposed removal for unsatisfactory performance. The Union filed a grievance concerning the downgrade and certain aspects of the Agency's performance appraisal process. The parties resolved that grievance by executing an MOU dated October 20, 1987.

In the MOU, the Agency agreed to revise the Performance Appraisal Plan (PAP) used to evaluate the grievant. The Agency also agreed to provide the grievant "an opportunity to demonstrate, during a two week refresher period and a 90 day opportunity period, that she could adequately perform the work of an Application Clerk, GS-5." Award at 4. The MOU provided that the grievant would be "retroactively reinstated to the Application Clerk position with full pay and benefits" if, "at the end of [the] 90 day opportunity period, [the g]rievant's performance was found acceptable." Id. The grievant would remain in the lower-graded position if she failed to perform at an acceptable level.

Following the execution of the MOU, the grievant was provided a 3-week refresher period and then a 90-day opportunity period. At the conclusion of the opportunity period, the grievant was evaluated and found to have performed at an unacceptable level. On May 10, 1988, the Agency informed the grievant that she had failed to attain "the marginal level of performance" for the position of Application Clerk, GS-5, and that "she would not be reinstated to her former position or awarded back pay." Id. at 6.

The Union filed a grievance protesting the Agency's decision. The grievance alleged that: (1) the Agency breached the MOU; (2) certain standards in the PAP were unattainable; (3) the grievant's performance was acceptable; (4) the Agency failed to meet its obligations to the grievant during the opportunity period and, thereby, failed to provide the grievant a reasonable opportunity to demonstrate acceptable performance; and (5) the Agency retaliated against the grievant for her successful grievance settlement. Id. The Union requested that the grievant be promoted retroactively to the Application Clerk, GS-5, position and paid backpay and benefits. The parties were unable to resolve the grievance and the matter was submitted to arbitration.

The Arbitrator framed the issue as: "Did the Agency violate the Settlement Agreement dated October 20, 1987?" Id. at 1. The Arbitrator found that the MOU obligated the Agency to provide the grievant with an opportunity period in which to demonstrate acceptable performance. The Arbitrator stated that the performance standards used to evaluate the grievant must be "reasonable and proper" and that the Agency was required to notify the grievant of those standards. Id. at 9. The Arbitrator also stated that the grievant "must have been afforded a reasonable opportunity to demonstrate satisfactory performance, the performance standards must have been properly applied in evaluating and determining her performance, and the Agency's determination of unacceptable performance must be supported by substantial evidence that [the g]rievant performed unsatisfactor[ily] in at least one critical element." Id.

The Arbitrator rejected the Union's claim that the performance standards are unattainable, finding that the "standards were attained by each Applications Clerk except the grievant." Id. The Arbitrator also rejected the Union's assertions that the grievant was harassed and that the Agency's conduct during the opportunity period constituted retaliation against the grievant. The Arbitrator ruled that the record did not support the Union's claims. Id. at 9-10.

The Arbitrator found that the Agency "established by substantial evidence that [the g]rievant did not perform satisfactor[ily] in either major critical element" and that the Union "failed to demonstrate that [the grievant's] performance was acceptable." Id. at 10. However, the Arbitrator stated that "[a] proper determination that an employee has not performed acceptably can only be made after the employee has been afforded an opportunity to demonstrate acceptable performance[.] Failure to afford a bona fide opportunity to improve invalidates a performance determination reached in its absence." Id. at 10-11 (citation omitted).

The Arbitrator also found that "the parties have agreed that in any action based on unacceptable performance, the Agency 'will make every reasonable effort to assist employees in improving deficient performance and will provide reasonable opportunity for the employee to correct performance problems' before initiating performance-based action against the employee." Id. at 11, quoting Article 45, Section 2 of the parties' agreement.

The Arbitrator determined "from a review of the evidence" that, during the opportunity period, the Agency

only documented [g]rievant's errors and provided negative feedback, failed to provide guidance and assistance to correct [g]rievant's mistakes or to improve [g]rievant's overall performance, and failed to warn [g]rievant during the opportunity period that she was failing to meet the minimum performance standards in the aspects on which the Agency later relied to conclude that she had failed to demonstrate acceptable performance.

Id. at 12. The Arbitrator stated that the "assistance" which the grievant's supervisor provided was not "sufficient to satisfy the Agency's obligations as set forth in MSPB [Merit Systems Protection Board] precedent" and "fall[s] short of constituting 'every reasonable effort' as set forth in the Agreement." Id. The Arbitrator concluded that the Agency failed to provide the grievant a "bona fide" opportunity to demonstrate acceptable performance and the appraisal was not valid. Id. at 12-13. The Arbitrator sustained the grievance.

However, the Arbitrator refused to require the Agency to reinstate the grievant to the higher-graded position, as requested by the Union. The Arbitrator held that the grievant must "demonstrate that she can perform acceptably in the Application Clerk position before the Agency is obligated to place her in that position." Id. at 13 (emphasis in original). To remedy the violation of the MOU, the Arbitrator ordered the Agency to provide the grievant another refresher period and another opportunity period to demonstrate acceptable performance.

III. Positions of the Parties

A. Agency's Exceptions

The Agency states that it "excepts to the Arbitrator's misapplication of the law and resulting decision that the Agency did not provide the grievant with a bona fide opportunity to improve." Exceptions at 3. In support of its exceptions, the Agency argues that the Arbitrator's ruling that the Agency did not provide the grievant a bona fide opportunity to improve by denying the grievant sufficient feedback and training throughout the improvement period was "in error." Id. The Agency maintains that "[t]here is no law, rule, or regulation which requires an [a]gency to provide training before an action is taken based on performance deficiencies." Id. at 5 (citation omitted). The Agency asserts that it "met its obligation to provide a bona fide opportunity to improve by giving the grievant adequate instructions on how to do her job." Id. at 6.

The Agency also argues that the Arbitrator erroneously determined that the Agency should have provided statistical information to the grievant on her performance. The Agency states that "[t]here is no basis in the law or regulation for this requirement. There is no harmful error by an agency when it fails to provide an employee with weekly counseling sessions. Nor is there any requirement that the [a]gency provide a written evaluation at any time inside the improvement period." Id. at 8 (citations omitted). The Agency contends that the Arbitrator's award is deficient because "[t]he Arbitrator has placed upon the Agency requirements for an opportunity period that are beyond what is contained in the law and regulations." Id. at 9.

B. Union's Opposition

The Union asserts that the Agency's exceptions provide no basis for finding the arbitration award deficient and states that "[t]he Agency's exceptions are nothing more than mere disagreements with the Arbitrator's well reasoned application of MSPB precedent and the parties' collective