43:0624(52)AR - - AFGE Local 2814 and Transportation, Federal Railroad Administration, Washington, DC - - 1991 FLRAdec AR - - v43 p624



[ v43 p624 ]
43:0624(52)AR
The decision of the Authority follows:


43 FLRA No. 52

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2814

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL RAILROAD ADMINISTRATION

WASHINGTON, D.C.

(Agency)

0-AR-2096

DECISION

December 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James P. Whyte filed by the Agency pursuant to 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.

A grievance was filed disputing, among other things, the grievant's performance ratings for her mid-year performance appraisal. The Arbitrator sustained the grievance and concluded that the grievant had been improperly evaluated. The Arbitrator directed the Agency to raise the ratings to fully successful or better on all of the grievant's performance appraisals or evaluations given after July 1, 1989.

For the following reasons, we conclude that the portion of the award directing the Agency to raise the grievant's performance ratings is deficient. We will deny the Agency's exceptions to the remainder of the award.

II. Background and Arbitrator's Award

The grievant began to work for the Agency on February 28, 1988. She received her first performance appraisal on February 27, 1989, which covered the period from February 29, 1988, to January 31, 1989, and rated the grievant as "fully successful". A grievance which was filed protesting the grievant's performance appraisal alleged, among other things, that she had not received critical job elements (CJEs) for her position and that no performance plan had been issued prior to the performance appraisal.(1)

On August 30, 1989, the grievant received a memorandum containing her mid-year performance appraisal. The memorandum covered the period February 1, 1989, to August 30, 1989, and stated that the grievant was rated "unacceptable" as to CJE #1. The grievant was advised that she had sixty (60) days to improve to the "partially successful" level in order to remain in the Federal Service. The memorandum also stated that the grievant was rated "partially successful" on CJE #2. Based on these ratings, the grievant's supervisor decided to provide the grievant with on-the-job training.

On September 14, 1989, a grievance was filed alleging, among other things, that the August 30 memorandum was a misapplication of the Agency's regulations. The grievant requested to review the materials on which the performance appraisal was based. The Agency responded by stating that the supervisor would continue to assist the grievant. The Agency's response also contained the grievant's "performance appraisal" for February 1, 1989, to January 1, 1990, and "a statement of CJEs." Award at 3.(2) The award does not indicate whether this grievance was processed further.

Another grievance was filed on September 28, 1989, alleging, among other things, that the Agency had given the grievant the mid-year performance appraisal to retaliate against the grievant for the grievance she had filed in the immediately preceding rating period. The Agency responded that there had been no retaliation and that the August 30 memorandum was a semi-annual progress review and a notice of an opportunity for improvement period (OIP). On December 7, 1989, the Agency denied the September 28 grievance. The matter was not resolved and was submitted to arbitration. On January 3, 1990, the Agency issued a Notice of Proposed Removal to the grievant. The Agency discharged the grievant on March 3, 1990, for unacceptable performance of CJE #1.

Before the Arbitrator, the parties stipulated to the following two issues:

1. Was (Grievant) properly evaluated as Unsatisfactory at the semi-annual progress review?

2. Did (Grievant) receive proper training pursuant to FRA Order 3430.3 prior to the removal and subsequent to the Unsatisfactory performance rating.(3)

Award at 6.

The Arbitrator concluded that the grievant was improperly evaluated as unsatisfactory on her semi-annual performance appraisal. He found that the parties' Memorandum of Agreement (MOA) and Agency regulations required that the employees participate with their supervisors in the development of performance standards for each CJE and that the supervisors review the CJEs with the employees to ensure they accurately reflect the duties of the job. Id. at 9-10. However, the Arbitrator did not find "a scintilla of evidence . . . even remotely suggesting that Grievant received the benefits of the consultations and discussions mandated by MOA Article VIII and FRA Order 3430.3." Id. at 10. The Arbitrator concluded that the failure of the grievant's supervisors to consult with her regarding her performance standards and CJEs, the absence of performance standards at the outset of her employment, "and the situation into which she was placed before issuance of [p]erformance [s]tandards and CJEs had an adverse effect . . . on her supervisor's appraisal of her performance." Id. Accordingly, the Arbitrator found that she had been improperly evaluated.

The Arbitrator also found that the grievant was assigned tasks without having been thoroughly trained in the use of the new computer system. Therefore, he concluded that the grievant did not receive proper training during her OIP. Id.

Accordingly, the Arbitrator sustained the grievance and directed the Agency "to substitute satisfactory or fully successful, or better, ratings on all documents, appraisals, and evaluations given Grievant by her immediate supervisor or supervisors after July 1, 1989." Id.

III. Positions of the Parties

A. The Agency

The Agency contends that the Arbitrator exceeded his authority by improperly expanding the scope of the issues submitted by the parties and that the award is contrary to law, rule or regulation.

The Agency argues that the Arbitrator exceeded his authority by considering whether the CJEs received by the grievant were properly established rather than considering whether the CJEs were properly applied to the grievant. The Agency states that under the Authority's decision in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I), awards may not interfere with management's rights to establish performance standards and critical job elements. The Agency claims that the grievant failed to raise the issue of whether she was afforded the opportunity to participate in the establishment of her CJEs within the time limitations provided in the parties' MOA. Therefore, the Agency argues that that issue was not properly before the Arbitrator. In the alternative, the Agency contends that even if the Arbitrator properly considered establishment of the grievant's CJEs, the Agency's failure to provide an adequate opportunity for the grievant to participate in their establishment is not a sufficient basis on which to invalidate the CJEs. According to the Agency, this failure of the Agency would constitute harmless error.

Next, the Agency argues that the Arbitrator exceeded his authority by substituting his judgment for that of the Agency when he concluded that the grievant did not receive proper training during her OIP. The Agency maintains that the Arbitrator neither explained his conclusion nor established any nexus with the Agency's regulations, as the stipulated issue requires. The Agency claims that the Arbitrator's decision in this regard directly interferes with the Agency's right to assign work and determine the appropriate training necessary to accomplish that work under section 7106 of the Statute.

Finally, the Agency objects to the award, which requires the Agency to raise the grievant's performance appraisals given after July 1, 1989, to "fully successful, or better[.]" Exceptions at 5 (quoting award). The Agency states that under SSA I, the Arbitrator may not direct the Agency to reappraise the grievant without a determination that management has not applied the established performance standards or applied them in violation of law, regulation or contractual provision; nor may he determine what the grievants's rating would have been under a proper application of those standards without a sufficient basis in the record for making such a determination. Because the Arbitrator did not consider the application of the CJEs to the grievant, the Agency argues that there is no basis in the record for the Arbitrator's award.

B. The Union

The Union maintains that the Arbitrator did not exceed the scope of his authority in determining that the Agency failed to properly apply the CJEs to the grievant. According to the Union, there is a distinction between the establishment of CJEs and the proper application of CJEs to the employees. The Union claims that the Arbitrator did not examine the substance of the CJEs. Rather, the Arbitrator only determined whether they had been properly applied to the grievant. The Union argues that if the Agency violates its own rules and regulations in establishing and applying CJEs, then the grievant's performance cannot be properly rated. As the Arbitrator found that the Agency would have reached a different result if it had properly rated the grievant, the Union also argues that this finding is sufficient to support the Arbitrator's direction to raise the grievant's performance ratings.

The Union claims that the Arbitrator was within his authority to determine that the grievant did not receive proper training during her OIP, especially in view of the fact that the stipulated issue expressly required the Arbitrator to determine whether the grievant received proper training pursuant to FRA Order 3430.3. In addition, the Union contends that under the parties' negotiated grievance procedure, the Arbitrator has the authority to interpret contractual provisions and Agency regulations in the course of resolving disputes between the parties. Therefore, the Union argues that the Agency is merely disagreeing with the Arbitrator's interpretation of the Agency's regulations.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority by Expanding the Issues

The Agency contends that the Arbitrator exceeded his authority by improperly expanding the scope of the issues stipulated by the parties. An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration. See U.S. Department of Veterans Affairs and American Federation of Government Employees, Local 1765, 43 FLRA No. 20, slip op. at 6 (1991).

According to the Arbitrator, the parties framed the first stipulated issue as follows: "Was [Grievant] properly evaluated as Unsatisfactory at the semi-annual progress review?" Award at 6. The Arbitrator determined that the parties' MOA and the applicable Agency regulation require that the Rating Official conduct a formal mid-year appraisal of each employee and provide the employee an opportunity to discuss objectives and to revise CJEs and performance standards. In essence, the Arbitrator concluded that the grievant's semi-annual performance appraisal encompassed the establishment and application of CJEs. He further found that the Agency's failure to engage in consultations with the grievant regarding her performance standards and CJEs and the absence of performance standards when she started the position had an adverse effect on her appraisal. Based on this conclusion, the Arbitrator found that the grievant was "improperly evaluated." Id. at 10. We conclude that the Arbitrator's findings were responsive to the stipulated issue. In view of the Arbitrator's finding that the establishment of performance objectives is a component of the appraisal process, the Arbitrator did not exceed the scope of his authority by examining the Agency's establishment of the CJEs.

We also conclude that the Arbitrator acted within the scope of his authority in determining that the Agency improperly applied the CJEs to the grievant. First, the Arbitrator made no findings as to the content of the established standards and he established no new standards. Rather, he determined that the Agency erred by appraising the grievant on established standards that had not been communicated to the grievant according to the provisions of the parties' MOA. As the Arbitrator did not invalidate the CJEs, we need not address the Agency's alternative argument that its failure to permit the grievant to participate in the establishment of the CJEs constituted harmless error.

We conclude that the Arbitrator did not exceed the scope of his authority by finding that the grievant did not receive proper training during her OIP. First, the parties stipulated the second issue for resolution to be whether the grievant "received proper training pursuant to FRA Order 3430.3 prior to [her] removal [but] subsequent to the Unsatisfactory performance rating." Id. at 6. As noted above, an arbitrator exceeds his authority when he resolves an issue not submitted to arbitration. We find the Arbitrator's decision to be within the stipulated issue.

We further conclude that the Arbitrator did not substitute his judgment for that of the Agency, as the Agency contends. In this regard, we conclude that the award does not interfere with management's right to assign work under section 7106(a)(2)(A) of the Statute. The Arbitrator determined that the grievant was not given adequate training on the new computer system during her OIP, as required by the parties' MOA and the Agency regulation set forth in the award. In his award, however, the Arbitrator did not require the Agency to take or refrain from taking any action pursuant to its right to assign work. See U.S. Department of the Army, Armor Center, Fort Knox, Kentucky and American Federation of Government Employees, Local 2302, 34 FLRA 161 (1990) (where arbitrator found that agency violated the detail provisions of the parties' agreement but provided no remedy for those contractual violations, Authority concluded that the award did not interfere with management's rights to assign and direct employees and to assign work). Therefore, we find no conflict with management's rights.

B. Modification of Award

An arbitrator may cancel a performance rating if the arbitrator determines that "management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement." U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990) (SSA II). The Arbitrator's finding that there was no evidence that the grievant participated in any discussions regarding the establishment of the CJEs, as mandated by the parties' MOA and FRA 3430.3, constitutes a determination that the Agency did not properly apply the performance standards. See U.S. Department of Health and Human Services, Social Security Administration Mid-America Program Service Center, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 38 FLRA 544, 547 (1990) (arbitrator did not exceed his remedial authority in determining that the agency did not apply established standards in appraising the grievant). Accordingly, we will deny the Agency's exception to the portion of the award finding that the grievant was improperly rated at her mid-year performance appraisal.

In addition to finding that the Agency improperly applied the CJEs to the grievant, the Arbitrator directed the Agency to "substitute satisfactory or fully successful, or better, ratings on all documents, appraisals, and evaluations given Grievant by her immediate supervisor or supervisors after July 1, 1989." Award at 10. Consistent with SSA I, an arbitrator may order management to grant a particular rating only "if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred[.]" SSA II, 34 FLRA at 328.

In this case, the Arbitrator made no findings as to what the grievant's rating would have been had the Agency not violated the parties' MOA. Moreover, there is nothing to indicate that the Arbitrator's direction to raise the grievant's ratings was based on the record. As the Authority stated in SSA II, "[i]f the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation." Id. Accordingly, we will set aside that portion of the award directing the Agency to raise the grievant's performance appraisal, and modify the award to require that the Agency properly reevaluate the grievant with regard to CJE #1.

Insofar as the only grievance before the Arbitrator concerned the grievant's mid-year performance appraisal covering the period from February 1, 1989 to August 30, 1989, we also conclude that the Arbitrator could not direct the Agency to raise the grievant's ratings for all performance appraisals given after July 1, 1989. On remand, therefore, the Agency need only reevaluate the grievant's performance for the period beginning February 1, 1989, and ending August 30, 1989.

V. Decision

The portion of the Arbitrator's award that directs the Agency to raise all of the grievant's performance appraisals given after July 1, 1989, is set aside. The award is modified to provide as follows:

The grievance is sustained. The grievant's performance rating for CJE #1 for the appraisal period in dispute shall be properly reevaluated to determine the rating the grievant would have been granted had she been appraised as required by the parties' MOA and by FRA 3430.3. The reappraisal shall reflect the fact that the grievant did not receive CJEs at the outset of her employment and that her supervisors failed to consult with the grievant regarding her performance standards prior t