53:0146(21)AR - - Treasury, Bureau of Engraving and Printing, Washington, DC and NTEU Chapter 201 - - 1997 FLRAdec AR - - v53 p146



[ v53 p146 ]
53:0146(21)AR
The decision of the Authority follows:


53 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

WASHINGTON, D.C.

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 201

(Union)

0-AR-2738

_____

DECISION

June 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Margery Gootnick 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator ordered the Agency to raise the grievant's performance appraisal rating on three of her job elements and her summary rating. We conclude that the Agency fails to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is a program analyst, who was frequently tardy to work. In the appraisal period prior to the one in dispute, the grievant's supervisor rated her level 5 ("outstanding") on all of her job elements. This supervisor testified at arbitration that for the first two-and-one-half months of the disputed period, the grievant's work continued to be at level 5, despite the fact that she was "frequently" and "noticeably" tardy at a rate "out of the ordinary." Award at 9 (quoting supervisor).

During the disputed period, the grievant began working for another supervisor. The grievant's new supervisor rated the grievant level 4 ("excellent") on job elements II and III and level 1 ("minimally acceptable") on element V.(1) Her summary rating was "excellent." In the general summary attached to the grievant's performance appraisal, this supervisor stated:

Only one aspect of [the grievant's] performance prevents an unqualified Outstanding Performance Rating. This aspect involves Element V, Adherence to Policies/Procedures; specifically, [the grievant's] frequent tardiness.

Id. at 13. The grievance claimed that the grievant's ratings for elements II, III, and V should be raised to level 5 and that her summary rating should be raised to "outstanding."

The Arbitrator framed the issue as whether the grievant's performance appraisal was in accordance with the parties' collective bargaining agreement and determined that it was not. She found that the appraisal violated Article 34, Sections 1, 11, and 12 of the parties' agreement.(2)

The Arbitrator found that the grievant's supervisor had failed to conduct a mid-year progress review, as required by Section 11. She also found that the grievant's supervisor had failed to conduct any meaningful appraisal interview and to provide any narrative on the individual standards on which the grievant was rated, as required by Section 12. She concluded that these violations deprived the grievant of notice regarding the risk of being adversely evaluated because of tardiness. The Arbitrator acknowledged that on a number of occasions the supervisor expressed his displeasure with her tardiness. Nevertheless, the Arbitrator found that this did not inform the grievant that, at least in her supervisor's judgment, her tardiness was adversely affecting her work performance. The Arbitrator further stated that the grievant's supervisor "cannot be permitted to rate an otherwise Outstanding employee to be lower than Outstanding because of a tardiness problem that was never made the subject of discipline." Id. at 18. Based on all of these factors, the Arbitrator interpreted and applied the agreement as precluding use of the grievant's tardiness in her performance appraisal.

The Arbitrator also found that the supervisor violated Article 34, Section 1 by failing to appraise the grievant against the established performance standards for the disputed job elements. She noted the supervisor's testimony that on elements II and III, he considered the adverse effect of the grievant's tardiness on the "reputation and credibility" of the office even though this factor is not included in the standards for these elements. Id. She found that it was clearly improper to appraise the grievant at level 4 on elements II and III for conduct admittedly unrelated to the established standards. With respect to element V, the Arbitrator determined that the clear understanding within the division was that it was not necessary to call in when less than 1 hour late and that the grievant "followed this understanding" without exception. Id. at 12. Therefore, the Arbitrator found that it was improper to appraise the grievant at level 1 on element V when her tardiness did not violate any office policy or procedure.

Accordingly, the Arbitrator canceled the grievant's ratings for elements II, III, and V, expressly finding that the impropriety that permitted the cancellation of the disputed performance ratings "was the Agency's reliance on her tardiness to lower her rating." Id. at 20. The Arbitrator noted that the grievant's supervisor had admitted that the grievant would have received a summary rating of "outstanding," but for her tardiness, and the Arbitrator determined that if the Agency had not violated the collective bargaining agreement, it would have rated the grievant at level 5 on elements II, III, and V and would have given her a summary rating of "outstanding." Accordingly, the Arbitrator sustained the grievance and ordered the Agency to grant those ratings.(3)

III. Exceptions

A. Agency's Contentions

The Agency contends that the award is deficient on several grounds.

First, the Agency contends that the award is contrary to section 7106(a) of the Statute and the approach of the Authority set forth 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). It argues that the award is contrary to section 7106(a) because the Arbitrator altered the content of the disputed performance standards by precluding consideration of the grievant's tardiness. Relying on Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 48 FLRA 129 (1993) (proposal 2), petition for review denied sub nom., POPA v. FLRA, 47 F.3d 1217 (D.C. Cir. 1995) (PTO), the Agency also maintains that the award interferes with management's rights by preventing the Agency from holding the grievant accountable for her tardiness. The Agency further argues that the Arbitrator's findings under SSA are not sustainable because all of the violations found by the Arbitrator were harmless and the Arbitrator did not determine what the grievant would have been rated if she had been provided a progress review. Instead, the Agency asserts that the Arbitrator altered the performance standards and evaluated the grievant under the altered standards.

Second, the Agency contends that the award is contrary to rules and regulations. The Agency claims that the award violates 5 C.F.R. § 430.204(d)(2) because it "immunizes the employee from accountability for errors or failures to meet lawful organizational goals and objectives."(4) Exceptions at 7. The Agency also claims that the award violates Bureau of Engraving Manual chapter 630-B, which provides that "attendance which interferes with the accomplishment of the agency mission may be used as a basis for a lower overall rating." Exceptions at 7. The Agency maintains that these regulations, the Agency's performance appraisal regulations, and "basic workplace rules," id. at 28, allow for consideration of tardiness in performance appraisals and that there was ample testimony presented to the Arbitrator establishing the adverse effects of tardiness on the grievant's performance.

Third, the Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement. It claims that the Arbitrator improperly applied the parties' collective bargaining agreement to preclude consideration of the grievant's tardiness because the grievant had never been disciplined. The Agency also argues that the Arbitrator misinterpreted the agreement by finding contractual requirements to counsel the grievant about the potential effects of her tardiness and to tell employees that certain matters can lower their performance ratings. The Agency further asserts that such an obligation in this case would have been meaningless because the disputed performance standards were different from those applied to the grievant in the prior year.

Fourth, the Agency contends that the Arbitrator's finding that the grievant was never notified that her tardiness could affect her performance ratings is a nonfact. The Agency maintains that the grievant was provided with notice through her performance standards, which she admitted receiving and never questioning. The Agency also asserts that the grievant's supervisor discussed the effect her tardiness could have on her performance appraisal and that, consequently, the Arbitrator's finding to the contrary is based on a nonfact. The Agency further asserts that the Arbitrator's finding that the grievant followed all office policies despite her habitual tardiness is likewise based on a nonfact.

Fifth, the Agency contends that the Arbitrator exceeded her authority by deciding issues that were not before her.

B. Union's Opposition

The Union contends that the Agency has failed to establish that the award is deficient on any of the grounds alleged.

The Union argues that the award is not contrary to law or regulation. The Union claims that, contrary to the Agency's assertion, the Arbitrator did consider the grievant's tardiness, but simply concluded that it did not affect her performance. The Union also maintains that the award is consistent with SSA and evidences no alteration of the content of the performance standards.

The Union also argues that the award draws its essence from the agreement. It maintains that the Agency mischaracterizes the award as holding that the grievant's tardiness could not be used in her appraisal unless she was first disciplined. The Union further argues that the award is not based on nonfacts and that the Arbitrator decided precisely the issue submitted.

IV. Analysis and Conclusions

A. The Award is Not Contrary to Section 7106(a)

1. Analytical Framework

The Authority set forth in SSA the following two-prong test to determine whether an arbitration award resolving a performance appraisal grievance impermissibly affects management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute:

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.

34 FLRA at 328.

Subsequent to the Authority's decision in SSA, the Supreme Court construed the language of section 7106 of the Statute in a manner that requires us to reexamine the first prong of this test.(5) See IRS v. FLRA, 494 U.S. 922 (1990). First, the Court held that the "nothing in this chapter" language of section 7106 means that nothing in the entire Statute, including grievance arbitration under section 7121, can affect the authority of management officials to exercise, in accordance with applicable laws, the management rights enumerated in section 7106(a)(2) of the Statute. 494 U.S. at 928. Second, in construing the "in accordance with applicable laws" language of section 7106(a)(2), the Court ruled that the Statute does not empower unions to enforce all external limitations on the enumerated rights, but only those limitations contained in applicable laws. Id. at 931. Third, the Court rejected a construction of the Statute that would equate the term "applicable laws" with the phrase "any law, rule, or regulation" in section 7103(a)(9) of the Statute.(6)

In addition to the statutory limit on management rights resulting from the term "applicable laws" in section 7106(a)(2) of the Statute, an agency's authority to exercise the rights enumerated in section 7106(a) is expressly made "subject to" section 7106(b), which states that "[n]othing in [section 7106] shall preclude an agency from negotiating" over the matters set forth in section 7106(b). Consistent with the language and structure of section 7106, it is clear that section 7106(b) constitutes a separate limitation on, or exception to, management rights under section 7106(a).(7) See Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) ("§ 7106(b) is indisputably an exception to § 7106(a)." (emphasis in original)).

On reexamination, we revise the SSA analysis to comport with this construction of section 7106. In accordance with the plain wording of the Statute and the decision in IRS v. FLRA, it is clear that, with the limited exception of matters subject to the "carve-out" doctrine as discussed in note 7 above, an arbitration award that affects management rights under section 7106(a)(2) may provide a remedy only for a violation of either applicable law, within the meaning of section 7106(a)(2), or a contract provision that was negotiated pursuant to the exceptions to section 7106(a) that are set forth in section 7106(b).(8) Thus, under prong I, an arbitrator may cancel a performance rating only if management applied the established performance standards for that job element in violation of either an applicable law or a provision of the parties' collective bargaining agreement on a section 7106(b) matter. In addition, an arbitrator may cancel a rating only if the violation affected that rating. Cf. American Federation of Government Employees, Local 1843 and U.S. Department of Veterans Affairs Medical Center, Northport, New York, 51 FLRA 444, 448-49 (1995) (there must be a sufficient nexus between the remedy and the violation for which relief is provided). This revision applies the same approach to awards resolving performance appraisal grievances that are claimed to affect management rights that we apply to awards claimed to affect other management rights. Cf. U.S. Department of Veterans Affairs Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 274 (1995) (finding no basis in the Statute to apply a different approach to management's right to discipline than is applied to other management rights under section 7106(a)).

Under the revised analysis, agency regulations that do not constitute applicable laws, contract provisions that are not enforceable consistent with section 7106, and management's failure to apply established performance standards provide no basis for canceling a performance rating. Thus, the Authority will find an award deficient if the arbitrator canceled a performance rating solely because management failed to apply established performance standards; violated a regulation that does not constitute an applicable law; or violated an agreement provision that is not enforceable consistent with section 7106 of the Statute. Accordingly, we will no longer follow such decisions as U.S. Department of the Air Force, 509th Bombardment Wing, Pease Air Force Base, New Hampshire and National Association of Government Employees, Local R1-111, 41 FLRA 1035 (1991) (arbitrator canceled disputed performance ratings solely on the basis of the agency's failure to apply the established performance standards) and U.S. Department of the Army, Headquarters, Army Garrison, Fort Richie, Maryland and National Federation of Federal Employees, Local 115, 43 FLRA 968 (1992) (arbitrator canceled the grievant's performance appraisal solely on the basis of the agency's failure to comply with an agency regulation).

Prong II of the analysis requires that the award must reflect a reconstruction of what management's appraisal of the grievant would have been if management had acted properly. Thus, an arbitrator who has properly canceled an appraisal or rating under the revised prong I may order management to change the grievant's rating only when the arbitrator is able to determine what management would have rated the grievant's performance if management had not violated applicable law or a contract provision concerning a section 7106(b) matter. An arbitrator does not properly reconstruct what management would have rated the grievant's performance when the arbitrator independently appraises or rates a grievant, or determines what management would have rated the grievant using standards different from those established by management.

When the arbitrator is unable to reconstruct what the grievant's appraisal or rating would have been had management acted properly, the arbitrator must remand the case to management for reevaluation.

2. Application of the Revised Analytical Framework

a. Prong I

Applying this revised analytical framework in this case, we conclude that the Arbitrator properly canceled the grievant's ratings on the disputed job elements. The Arbitrator found that management violated Article 34, Sections 1, 11, and 12 in appraising the grievant on those elements. Management's evaluation of employees under an established performance appraisal system constitutes the exercise of the rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. E.g., AFGE, 30 FLRA at 1158-59. By canceling the grievant's ratings for those elements, the award affects the exercise of those rights. However, we find that Article 34, Sections 1, 11, and 12, as interpreted and applied by the Arbitrator, constitute arrangements within the meaning of section 7106(b)(3) of the Statute and were enforced by the Arbitrator consistent with Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990).

As interpreted and applied by the Arbitrator, Article 34, Sections 1, 11, and 12 required management to apply the established performance standards to the grievant and to inform the grievant that her tardiness was adversely affecting her work performance under those standards prior to holding her accountable for tardiness in her performance appraisal. We find that these provisions, as enforced by the Arbitrator, provide relief to ameliorate the adverse effects on employees of being evaluated on matters on which they were never informed they would be appraised. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10 (1993) (provision 11), review denied as to other matters, 26 F.3d 1148 (D.C. Cir. 1994) (a provision that is intended to provide relief to an employee whose performance is adversely evaluated on matters beyond the employee's control constitutes an arrangement under section 7106(b)(3) of the Statute); cf. National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27 (1991) (provision 12), aff'd in relevant part sub nom., IRS, Office of Chief Counsel v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (a provision that precludes consideration of a performance evaluation that would adversely affect the employee unless it had been provided to the employee constitutes an arrangement under section 7106(b)(3) of the Statute) (Office of Chief Counsel). Accordingly, as the provisions "address adverse effects flowing from the exercise of a protected management right[,]" they constitute arrangements. Office of Chief Counsel, 960 F.2d at 1073.

Because such provisions reserve to management the right to evaluate all performance under established performance standards as to which employees have been informed they will be appraised, their enforcement clearly does not abrogate management rights under section 7106(a)(2)(A) and (B).(9) Accordingly, the Arbitrator's cancellation of the grievant's performance appraisal as a remedy for the Agency's violations of Article 34 is not contrary to law.

Under prong I, the amount of harm caused by an agency's actions is not considered in canceling a disputed appraisal when management has improperly applied the established performance standards. See SSA, 34 FLRA at 327-28. Thus, the Agency's argument that its violations of the agreement were harmless provides no basis for concluding that the prong I finding is deficient. Furthermore, contrary to the Agency's claim, the Arbitrator found that the violations were not harmless.

b. Prong II

We conclude that the Arbitrator's prong II determination is not deficient. As interpreted and applied by the Arbitrator, Article 34, Sections 1, 11, and 12 required management to apply the established performance standards to the grievant and to inform the grievant that her tardiness was adversely affecting her work performance under those standards prior to holding her accountable for tardiness in her performance appraisal. The Arbitrator found that the Agency violated Sections 11 and 12, by using the grievant's tardiness in her performance appraisal without having informed her that her tardiness was adversely affecting her performance under the established performance standards, and violated Section 1, by failing to appraise the grievant against the established performance standards for the disputed job elements. Finally, she specifically found that the grievant's supervisor had admitted that the grievant would have received a summary rating of "outstanding," but for her tardiness. In sum, the Arbitrator found that: (1) the Agency violated three separate provisions of Article 34 by basing the grievant's rating in part on her tardiness; and (2) the Agency admitted that this use of tardiness was the dispositive reason that the grievant had not received a rating of "outstanding." Therefore, in determining that the grievant should be rated level 5 on all disputed elements, the Arbitrator properly reconstructed what management would have rated the grievant's performance had it fulfilled the requirements of Article 34.

We reject the Agency's claim that the award is deficient because the reconstruction is not based on a failure to provide a progress review. The Agency has misapprehended the extent of the violations found by the Arbitrator, which, as discussed above, were much more extensive than a failure to provide a progress review. Furthermore, because the Arbitrator reconstructed what management would have rated the grievant under the established performance standards had it acted properly, the Arbitrator applied, and did not alter, those standards. Accordingly, the Arbitrator's order to raise the grievant's ratings is not contrary to law.

c. Summary

In sum, we conclude that the Arbitrator's cancellation of the grievant's appraisal on the disputed job elements and order to raise the grievant's ratings on those elements and her summary rating are not contrary to section 7106(a) of the Statute. Accordingly, we deny this exception.

B. The Award is Not Contrary to Any Governing Rule or Regulation

The Agency fails to establish that the award "immunizes" the grievant from accountability and, therefore, that it is contrary to 5 C.F.R. § 430.204(d)(2), as in effect at the time of the grievant's appraisal.(10) Exceptions at 7. The Arbitrator did not prohibit the Agency from considering tardiness in performance appraisals; she merely enforced the Agency's agreement to notify employees prior to such accountability. Nothing in section 430.204(d)(2) prohibited the Arbitrator from enforcing the Agency's agreement to inform the grievant that tardiness was adversely affecting her work performance under the established performance standards prior to holding her accountable in her performance appraisal for tardiness.

We similarly conclude that the award is not contrary to Bureau of Engraving Manual chapter 630-B, the Agency's performance appraisal regulations, or the unspecified "basic workplace rules" referred to by the Agency. Even if we were to assume that these rules and regulations are governing regulations and that they mandated consideration of the grievant's tardiness under her established performance standards, no basis is provided for finding the award deficient. No provision is cited or apparent that prohibited the Arbitrator from enforcing the Agency's agreement to inform the grievant that tardiness was adversely affecting her work performance under the established performance standards prior to holding her accountable in her performance appraisal for tardiness.

Accordingly, we deny this exception.

C. The Award Draws Its Essence From the Agreement

The Arbitrator interpreted and applied Article 34 as requiring the Agency to inform the grievant that tardiness was adversely affecting her work performance prior to holding her accountable for tardiness when appraising her under the established performance standards. The Agency has not demonstrated that this interpretation disregards the agreement or is irrational, unfounded, or implausible. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

In so finding, we reject the Agency's argument that the award does not draw its essence from the agreement because the Arbitrator relied on the Agency's failure to discipline the grievant for tardiness. Assuming, without deciding, that the Arbitrator did rely on the Agency's failure to discipline the grievant, and even assuming further that this finding cannot be derived from the agreement, the award, viewed as a whole, would still draw its essence from the agreement, as discussed below. Cf. U.S. Department of the Treasury, Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 36 FLRA 227, 231 (1990) (IRS, Indianapolis) (exception disputing a separate and independent ground for the award provides no basis for finding the award deficient when the exception to the arbitrator's other ground for the award has been denied).

In canceling the disputed ratings, the Arbitrator specifically found that the Agency violated provisions of the parties' collective bargaining agreement when it appraised the grievant on the disputed job elements. She found that the supervisor had failed to conduct a mid-year progress review, as required by Article 34, Section 11, and had not conducted any meaningful appraisal interview or provided any narrative on the individual standards on which the grievant was rated, as required by Article 34, Section 12. She concluded that these violations deprived the grievant of notice regarding the risk of being adversely evaluated because of tardiness. She also found that the grievant's supervisor had violated Article 34, Section 1 by failing to appraise the grievant against the established performance standards for the disputed job elements.

Finally, the Arbitrator stated that the grievant's supervisor "cannot be permitted to rate an otherwise Outstanding employee to be lower than Outstanding because of a tardiness problem that was never made the subject of discipline." Award at 18. Although the Agency claims that this latter statement does not draw its essence from the agreement, it does not assert that this alleged finding, by itself, was the basis for the award. Rather, the Agency also argues that the Arbitrator misinterpreted the agreement by finding a requirement to counsel the grievant or to otherwise give her notice that tardiness could lower her performance rating. In view of the fact that the Arbitrator relied on multiple agreement violations and our conclusion that those portions of the award are not irrational, unfounded, or implausible, the Agency has not established that the award is deficient on this basis. Cf. IRS, Indianapolis.

We also reject the assertion that the award fails to draw its essence from the agreement because the disputed performance standards were different from those applied to the grievant in the prior year. The Agency has not established that different standards were applied to the grievant the previous year and that, contrary to the finding of the Arbitrator, those standards informed the grievant that she would be held accountable for her tardiness.

Accordingly, we deny this exception.

D. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party must establish that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, we will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

The Agency asserts that the Arbitrator's findings that the grievant was never notified that tardiness could affect her performance and that the grievant followed all office policies are nonfacts. However, it is clear that the parties disputed before the Arbitrator both the Agency's policy on time and attendance, and whether the Agency had informed the grievant that her tardiness was adversely affecting her work performance. Consequently, the Agency's assertions provide no basis for finding the award deficient as based on a nonfact. Id. Accordingly, we deny this exception.

E. The Arbitrator Did Not Exceed Her Authority

As relevant here, arbitrators exceed their authority when they resolve an issue not submitted to arbitration. E.g., Sport Air Traffic Controllers Organization and U.S. Department of the Air Force, Headquarters, Air Force Flight Test Center, Edwards Air Force Base, California, 51 FLRA 1634, 1638 (1996). The Agency fails to establish that the Arbitrator resolved an issue not submitted. In the absence of a stipulated issue, the Arbitrator framed the issue as whether the grievant's appraisal was in accordance with Article 34 of the agreement. The award is directly responsive to this issue. Accordingly, we deny this exception. See id.

V. Decision

The Agency's exceptions are denied.

APPENDIX

The disputed performance standards provide:

Element II: Quality of Work

OUTSTANDING: All assignments were accomplished as assigned. Draft reports were submitted as specified and addressed all pertinent issues as expressed in the assignment. All final reports rendered were complete, grammatically correct, contained no misspelled words, and incorporated all changes requested by supervisor or manager. All reports include recommendations and suggestions for additional analysis or follow-up.

EXCELLENT: All assignments except one were accomplished as assigned. Draft reports were submitted as specified and addressed all pertinent issues as expressed in the assignment. All final reports rendered were complete, grammatically correct, contained no more than one misspelled word, and incorporated all changes requested by supervisor or manager. All reports included recommendations.

Element III: Timeliness in Completion of Assignments

OUTSTANDING: All assignments were accomplished as assigned and draft reports were submitted during the timeframe specified. All final reports were rendered complete, incorporated all changes specified by the supervisor or manager and were returned within the timeframe requested by that person. The manager or supervisor is informed of all delays and suggested revisions of deadlines are offered.

EXCELLENT: All assignments except one were accomplished as assigned within the timeframe specified. Draft reports were submitted as specified. All but one final report was rendered complete within the timeframe specified and incorporated all changes requested by the supervisor or manager. The manager or supervisor is informed of all delays.

Element V: Adherence to Policies/Procedures

OUTSTANDING: Follows all Office/Divisional policies/procedures; adheres to Bureau rules without exception; notifies Division manager of all absences (leave, training, etc.) well in advance; schedules leave as required. Provides suggestions regarding office policies and procedures.

MINIMALLY SUCCESSFUL: Occasionally fails to follow Office/Divisional policies/procedures with minor loss in productivity or other adverse impact; is late or absent on several occasions without notifying supervisor; usually fails to notify supervisor well in advance of planned training, absences, etc.

Article 34 of the agreement pertinently provides:

Section 1

This Article shall govern the administration of the Employee Performance Appraisal system (EPAS) for all employees within the bargaining unit. The EPAS shall be used to compare the employees' performance of assigned duties and responsibilities against established performance standards.

Section 11

(a) The supervisor shall provide each employee with mid-period Progress Review during each annual appraisal period. The Progress Review covers the period from October 1 through the following March 31. The Progress Review must be completed within one (1) month after the end of the mid-period (by April 30 of each year).

(b) The Progress Review shall cover the entire Performance Plan. During the Progress Review the supervisor will discuss and provide to the employee his specific written assessment of how the employee is accomplishing the Performance Plan. No summary rating will be assigned on the Progress Review.

Section 12

(a) At the conclusion of the annual appraisal period, the supervisor will prepare a written performance appraisal. The appraisal will consist of a brief narrative on each standard, including an assessment of whether the employee meets, exceeds or fails to meet the minimally acceptable level or the fully successful level for each of the standards set forth in the Performance Plan. The employee will be assigned one of the adjective summary ratings set forth in Section 2. Summary ratings will not be assigned to individual performance elements.

(b) The written performance appraisal will be provided to the employee at the appraisal interview. The interview will include a discussion of the employee's overall achievements with respect to each element and standard, as well as the determination of the employee's summary rating.

Section 7106 of the Statute provides:

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2) in accordance with applicable laws--

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from--

(i) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--

(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

(2) procedures which management officials of the agency will observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.




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

1. The applicable performance standards for these elements are set forth in an appendix.

2. Article 34, Sections 1, 11 and 12 are set forth in the appendix. The Arbitrator also found that the failure to provide the grievant with a progress review violated an agency bulletin that reminded supervisors to provide progress reviews to their subordinates.

3. In addition, the Arbitrator ordered the Agency to pay the grievant the difference between the performance award that she received and the award she would have received if she had been rated "outstanding." The Arbitrator also left the record open for a motion for attorney fees.

4. At the time of the arbitration in this case, 5 C.F.R. § 430.204(d)(2) (1994) provided:

Accomplishment of organizational objectives should, when appropriate, be included in performance plans by incorporating objectives, goals, program plans, work plans, or by other similar means that account for program results.

5. Section 7106 is set forth in the appendix.

6. The case was remanded to the Authority to consider the scope of the term "applicable laws." On remand, the Authority construed the term to encompass rules and regulations having the force and effect of law. National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377 (1991), enforcement denied on other grounds, 996 F.2d 1246 (D.C. Cir. 1993)

7. The Authority has also held that, notwithstanding the "breadth and effect that the Court has ascribed to the phrase 'nothing in this chapter,'" it is necessary to "carve out an exception to section 7106(a)" to maintain the negotiability of matters involving official time under section 7131(d) of the Statute. National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 347-48 (1992). See also U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1374-75 (1996) (Chair Segal concurring in part and dissenting in part).

8.