47:1326(123)AR - - GSA and AFGE, Local 236 - - 1993 FLRAdec AR - - v47 p1326



[ v47 p1326 ]
47:1326(123)AR
The decision of the Authority follows:


47 FLRA No. 123

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

GENERAL SERVICES ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

0-AR-2400

_____

DECISION

July 23, 1993

_____

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 John H. Abernathy 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.

In sustaining a grievance over the Agency's placement of the grievant under a performance improvement plan (PIP), the Arbitrator found that the Agency had violated the parties' collective bargaining agreement and the Agency's regulations. He ordered that the grievant's performance evaluation and PIP be rescinded and that the grievant be given training in the performance of his duties. For the following reasons, we deny the Agency's exceptions to the Arbitrator's award.

II. Background and Arbitrator's Award

The grievant is a GS-12 chemist. In October and November 1991, the grievant was informed by his supervisor that his work on a specific project was not acceptable. During this period, the performance plan applicable to the grievant's position was being revised. On March 30, 1992, the grievant was given the revised performance plan along with a performance rating of "unacceptable" in two critical elements for the March 1, 1991, through February 29, 1992, performance rating period. On May 15, 1992, the Agency placed the grievant under a PIP effective May 18, 1992. Under the PIP, the grievant "would be allowed no more than two significant deficiencies" and, if he failed to improve, would be subject to a performance-based demotion or removal. Award at 5.

The Union filed a grievance on the grievant's behalf alleging that the PIP was based on false information and that the revised performance plan was applied retroactively in violation of the Agency's regulations. The grievance was submitted to arbitration on the stipulated issue of whether the grievant's placement under the PIP violated the parties' collective bargaining agreement, Agency regulations, or law, and, if so, what was an appropriate remedy.

Before the Arbitrator, the Union contended that the record did not support the Agency's claim that the grievant's performance was unacceptable and maintained that the grievant had not received sufficient training in his job. The Union also argued that the grievant's revised performance plan was applied retroactively in violation of the Agency's performance regulations and that the Agency failed to give the grievant 90 days in which to perform under the revised plan before placing the grievant under the PIP. The Union contended that the Agency had known of problems with the grievant's performance as far back as October 1991, and had failed to deal with the problems at that time.

The Agency contended before the Arbitrator that the grievant's performance plan had not been significantly changed but only clarified. The Agency argued that the clarification caused no harm to the grievant, who was fully aware of the changes made in the performance plan. The Agency asserted that the grievant's performance was properly rated as unacceptable and that the Agency had acted properly in placing the grievant under a PIP.

The Arbitrator found that the Agency failed to rebut the Union's contentions that the grievant was improperly rated and that the grievant required additional training which he did not receive. The Arbitrator held that he was required to apply a standard of just cause in determining whether the grievant should have been placed under a PIP. According to the Arbitrator, a just cause standard "requires that all charges of poor performance be accurate and that the employee be informed of the standards of performance which form the basis for performance reviews." Id. at 34. He concluded that the grievant's supervisor had done "nothing to train the [g]rievant on actual performance deficiencies." Id. at 35.

The Arbitrator found that although the grievant's performance plan had been revised, the plan was not changed significantly between October 1991 and March 1992. He rejected the Union's contention that the revisions to the performance plan were "so significant that a new plan resulted." Id. at 36. However, citing Mouser v. Department of Health and Human Services, 32 MSPR 543 (1987), the Arbitrator held that any changes in a performance plan must be communicated to an employee and "[t]hat did not happen in this case." Id. at 37. The Arbitrator also found that the revised performance plan was applied retroactively in March 1992, noting that "the plan and the [g]rievant's performance evaluation arrived in the [g]rievant's hands the same day." Id. He concluded that the retroactive application of the revised performance plan was harmful to the grievant.

The Arbitrator also found that the Agency committed procedural errors that were harmful to the grievant. He noted the Union's contention that the Agency failed to place the grievant under a PIP in October 1991, when he was first informed that his performance was unacceptable. However, the Arbitrator ruled that that contention was outside the scope of the issue before him and did not address that contention further. He found that the Agency failed to provide 90 days in which the grievant might demonstrate improvement in his performance. He concluded that this failure, together with the Agency's failure to clearly communicate to the grievant what he must do to improve his performance, rendered the PIP deficient. He stated that "placing the [g]rievant on a PIP in May 1992 violates the National Agreement and Agency regulations in that the 90-day adjustment rule was violated." Id. at 38-39. The Arbitrator issued the following award:

1. The placement of the [g]rievant on a Performance Improvement Plan[]in May 1992 violated the National Agreement, Article 19, Sections 2, 4, and 7, Agency regulations, or applicable law[.]

2. As a remedy, I order the March 1992 annual performance evaluation of the grievant and the May 1992 PIP rescinded. The grievant is to be provided a copy of the new performance plan, a face-to-face meeting with his supervisor wherein the supervisor explains the new performance plan and its requirements, and full and complete training in his job duties and critical elements. These steps are to be completed within 120 days of this award.

Id. at 40.(*)

III. Positions of the Parties

A. The Agency

The Agency contends that the award is deficient because the Arbitrator exceeded his authority by addressing an issue that was not before him. The Agency maintains that the issue stipulated by the parties concerned only whether the grievant's placement under a PIP in May 1992 was proper. The Agency asserts that the Arbitrator awarded a remedy that was outside the scope of that issue when he ruled that the grievant was improperly rated in March 1992. According to the Agency, the March 1992 performance rating is the subject of another grievance pending before another arbitrator. Further, the Agency contends, even if the grievant's March 1992 rating were improper, that would not be a sufficient basis for rescinding the PIP because the Arbitrator failed to make the findings concerning the grievant's rating required under Authority precedent. The Agency also contends that the Arbitrator issued a remedy that "exceeds the claimed violation[,]" by requiring that the grievant receive training in the performance of his job duties. Exceptions at 2. The Agency cites Macijauskas v. Department of the Army, 34 MSPR 564 (1987) (Macijauskas) for the proposition that there is no legal or regulatory requirement for agencies to provide training to employees whose performance is not acceptable.

The Agency also contends that the award is contrary to 5 C.F.R. § 432.104, which "requires agencies to provide PIPs to employees whose performance in one or more critical elements is Unacceptable." Exceptions at 2 (emphasis deleted). The Agency maintains that the Arbitrator erroneously applied a just cause standard in resolving the grievance. The Agency asserts that the Arbitrator's use of a just cause standard "cannot in any rational way be derived from the agreement . . . ." Id.

B. The Union

The Union contends that the Agency's exceptions fail to establish a basis for finding the award deficient. The Union asserts that the Agency should have informed the grievant of the revised performance plan and should not have rated the grievant retroactively under the revised plan. The Union also asserts that the Arbitrator properly found that the grievant should have received training. With respect to the Agency's contention that the issue of the grievant's performance appraisal was the issue of a separate grievance before another arbitrator, the Union states that "[t]he 'other [a]rbitrator' mentioned in the Agency's exception issued a bench decision, that collateral estoppel prevents him from hearing that issue since it had already been decided by Arbitrator Abernathy." Opposition at 1.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

We view the Agency's contention that the Arbitrator decided an issue beyond the issue stipulated by the parties as an allegation that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when, for example, the arbitrator issues an affirmative order that exceeds the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 685 (1993).

According to the Arbitrator, the issue stipulated by the parties concerned whether the Agency had violated the parties' agreement, the Agency's performance regulations, or applicable law when it placed the grievant under a PIP. The Arbitrator determined that the Agency's actions in that regard violated the agreement and the Agency's regulations. In resolving the issue of the placement of the grievant under a PIP, the Arbitrator considered the underlying reasons for the Agency's actions, including the grievant's March 1992 performance appraisal, which was the basis for the placement of the grievant under a PIP. We find that the Arbitrator's consideration of the March 1992 performance evaluation was integrally related to the stipulated issue of whether the grievant was properly placed under a PIP. Consequently, we conclude that the Arbitrator did not exceed his authority by addressing the grievant's March 1992 performance evaluation.

We also find no merit in the Agency's contention that the Arbitrator exceeded his authority by considering the March 1992 performance evaluation because that issue had been submitted to another arbitrator. As we found above, the Arbitrator addressed an issue that was integrally related to the stipulated issue before him. Therefore, this portion of the Agency's exceptions provides no basis for finding the award deficient. See U.S. Department of Defense Dependents Schools, Germany Region and Overseas Education Association, 39 FLRA 13, 18-19 (1991) (arbitrator did not exceed authority when he addressed issues that were included in the stipulated issue although those issues were related to issues addressed by another arbitrator).

Further, the Arbitrator did not exceed his authority by ordering that the grievant be given training in the performance of his job duties. The order that the grievant be given training to improve his performance was directly related to the stipulated issue of appropriate remedy for the Agency's violation of the parties' agreement and the Agency's regulations in placing the grievant on a PIP. Therefore, as the Arbitrator's finding was responsive to the issue before him, there is no basis on which to conclude that the Arbitrator exceeded his authority. See American Federation of Government Employees, Local 2814 and U.S. Department of Transportation, Federal Railroad Administration, Washington, D.C., 43 FLRA 624, 631 (1991) (arbitrator did not exceed the scope of his authority by finding that the grievant did not receive proper training during an opportunity for improvement of performance period where that was a part of the stipulated issue); U.S. Department of Veterans Affairs and American Federation of Government Employees, Local 1765, 43 FLRA 216, 221 (1991) (arbitrator's award was responsive to stipulated issue and agency's exception failed to establish that award was deficient on ground that he exceeded his authority). In our view, the Agency's exceptions in this regard constitute mere disagreement with the Arbitrator's resolution of the issue before him and, as such, provide no basis for finding the award deficient. See American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 38 FLRA 600, 606 (1990).

B. The Award Is Not Contrary to Law and Regulation

The Agency contends that the award is contrary to law and regulation because the Arbitrator failed to make the findings required under Authority precedent for setting aside a performance evaluation. In U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (SSA), we described the approach that arbitrators will use when examining an agency's application of performance standards and stated that the following two-prong test is required:

First, an arbitrator must find 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. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, 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, the arbitrator may order management to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.

SSA, 34 FLRA at 328.

In this case, the Arbitrator found that the Agency violated the parties' agreement and the Agency's performance regulations when it inaccurately rated the grievant's performance as unacceptable, failed to inform the grievant of the revised performance plan until March 30, 1992, after the end of the rating period, and placed the grievant under a PIP based on his rating under the revised plan. The Arbitrator specifically found that the Agency failed to rebut the Union's contentions that the grievant was not rated correctly in March 1992. By finding that the performance plan was applied in violation of applicable provisions of the parties' agreement and the Agency's regulations, the Arbitrator satisfied the first prong of the test described in SSA.

Having found that the Agency violated the parties' agreement, the Arbitrator, in accordance with SSA, had the authority to cancel the grievant's improper performance rating and the resulting PIP and to order the Agency to reevaluate the grievant after informing him of the requirements of the revised performance plan and providing him with appropriate training. See, for example, American Federation of Government Employees, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 45 FLRA 631, 638-39 (1992) (award modified to require that the agency reevaluate the grievant to determine what his performance rating would have been if the agency had properly appraised the grievant in accordance with the parties' agreement); U.S. Department of the Army, Headquarters, Army Garrison, Fort Ritchie, Maryland and National Federation of Federal Employees, Local 115, 43 FLRA 968, 971-73 (1992) (award modified to require agency to reappraise grievant where arbitrator found that agency violated its regulation but arbitrator was unable to determine what evaluation the grievant would have received); U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 237, 240 (1990) (award modified to require agency to reappraise grievant where arbitrator did not determine what the grievant's rating would have been if the grievant had been properly evaluated). We find nothing in the Arbitrator's award that is contrary to law or regulation. Particularly, we find nothing in the award that is inconsistent with 5 C.F.R. § 432.104, which requires agencies to provide opportunities to demonstrate acceptable performance to employees whose performance of critical elements is deemed unacceptable. The Arbitrator merely required the Agency to apply properly that regulation as well as applicable contractual requirements with respect to placing the grievant under a PIP.

Further, we reject the Agency's contention that the award is contrary to regulation because the Arbitrator used a "just cause" test to determine whether the grievant was properly placed under a PIP. The Arbitrator stated that in order to determine whether the placement of the grievant under a PIP was justified required that "all charges of poor performance be accurate and that the employee be informed of the standards of performance which form the basis for performance reviews." Award at 34. The Agency has not shown, and it is not apparent, that any regulation, including 5 C.F.R. § 432.104, prohibits the Arbitrator from using "just cause" as a basis for determining whether the grievant was properly placed under a PIP. In our view, the Agency is merely disagreeing with the Arbitrator's conclusion that the Agency violated the parties' collective bargaining agreement and the Agency's regulations in retroactively rating the grievant as unacceptable under a revised performance plan and placing him under a PIP for that reason. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Veterans Affairs, Medical Center, Chillicothe, Ohio and American Federation of Government Employees, Local 1631, 44 FLRA 628, 630 (1992).

C. The Award Draws Its Essence from the Parties' Agreement

We construe the Agency's claim that the Arbitrator's requirement that the grievant be given training "cannot in any rational way be derived from the agreement" as a contention that the award fails to draw its essence from the parties' collective bargaining agreement. Exceptions at 2. In order to demonstrate that an award fails to draw its essence from the agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, 499 (1992).

The Agency has not demonstrated that the Arbitrator's award is deficient under any of these tests. That is, we have no basis on which to conclude that the Arbitrator's interpretation of the agreement to require training as an element of the grievant's opportunity to improve his performance is implausible, irrational, or unconnected to the wording of the parties' agreement. Rather, the Agency is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and attempting to relitigate the issue presented before the Arbitrator. The Agency's arguments do not provide a ground on which the Authority will find an award deficient under section 7122(a) of the Statute. See, for example, National Treasury Employees Union, Chapter 243 and United States Department of Commerce, United States Patent and Trademark Office, Arlington, Virginia, 37 FLRA 470, 475 (1990) (agency's contention that arbitrator imposed requirements, including training, for grievant's opportunity to improve performance beyond those required by law and regulation constituted mere disagreement with arbitrator's interpretation of memorandum of understanding); U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 35 FLRA 1218, 1223 (1990).

Finally, we reject the Agency's contention that the award is deficient under Macijauskas. In that case, the Merit Systems Protection Board (MSPB) sustained the removal of an employee for poor performance and, in so doing, rejected an administrative judge's ruling that there was "a generalized obligation that an agency provide formal training before effecting a performance based action . . . ." Id. at 569. However, the MSPB's decision does not prevent an agency from providing and, as in this case, an arbitrator from requiring, training for an employee who has received an unacceptable performance rating as part of the assistance required under 5 C.F.R. § 430.104 and the parties' collective bargaining agreement.

V. Decision

The Agency's exceptions are denied.

APPENDIX

Article 19, Performance Appraisal Systems, of the parties' agreement provides in relevant part:

. . . .

Section 2. Applicable Systems

The Employer will follow applicable GSA regulations, as modified by this Article, to evaluate unit employees, except those whose employment is not reasonably expected to exceed 120 days in a consecutive 12 month period.

. . . .

Section 4. [Describes and discusses critical elements and performance standards.]

. . . .

Section 7. Unsatisfactory Performance

A. At any time a supervisor determines that an employee is not performing at an acceptable level in one or more critical elements, the supervisor will develop a performance improvement plan. The purpose of the plan is to assist the employee in improving performance to the desired level. The plan will specify, as appropriate, the counseling, training, and/or short term specific actions to be accomplished within a set time frame before the Employer will initiate a performance based demotion or removal. The employee will be given the following information:

1. An explanation of those aspects of performance in which the employee's performance falls below an acceptable level.

2. An explanation of what must be done to bring performance up to at a fully successful level.

3. A statement that his/her performance may result in demotion or removal unless improvement to at least a marginally acceptable level is shown.

4. A statement that this notice gives the employee a reasonable period of time to bring his/her performance up to a fully successful level.

5. At the end of the specified period, the employee shall be advised as to the level of performance achieved.

5 C.F.R. § 432.104, "Addressing unacceptable performance by non-PMRS [Performance Management and Recognition System] employees," provides:

At any time during the performance appraisal cycle that a non-PMRS employee's performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable and inform the employee of the performance requirement(s) or standards(s) that must be attained in order to demonstrate acceptable performance in his or her position. The agency should also inform the employee that unless his or her performance in the critical element(s) improves to and is sustained at an acceptable level, the employee may be reduced in grade or removed. For each critical element in which the employee's performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position. As part of the employee's opportunity to demonstrate acceptable performance, the agency shall offer assistance to the employee in improving unacceptable performance.