53:0222(31)AR - - Treasury, Bureau of Engraving and Printing, Washington, DC and NTEU - - 1997 FLRAdec AR - - v53 p222



[ v53 p222 ]
53:0222(31)AR
The decision of the Authority follows:


53 FLRA No. 31

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-2743

_____

DECISION

August 1, 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 canceled the grievant's disputed performance appraisal and ordered the Agency to raise the grievant's performance ratings on four of her job elements and her summary rating. We conclude that the Agency has failed to establish that the portions of the award canceling the grievant's appraisal and ordering the Agency to raise the grievant's ratings on elements II and V are deficient. Accordingly, we deny the Agency's exceptions to those portions of the award. However, we conclude that the award is deficient insofar as the Arbitrator ordered the Agency to raise the grievant's ratings for elements I and IV, and we modify the award accordingly.

II. Background and Arbitrator's Award

For the appraisal period in dispute, the grievant's supervisor rated her level 3 ("fully successful") for job elements I, II, IV, and V and level 4 ("excellent") for job element III. Her summary rating was "fully successful." She filed a grievance disputing her appraisal.

The Arbitrator framed the issue as whether the grievant's appraisal was in accordance with the parties' collective bargaining agreement and determined that it was not. She found that the grievant's supervisor had retaliated against the grievant for "catching him in a lie" regarding a proposed office move during the appraisal period and that the supervisor's "animus" against the grievant as a result of this incident "poisoned [his] judgment and negatively affected her appraisal." Award at 19. The Arbitrator further found that in appraising the grievant for the period in dispute, management applied the established performance standards in violation of Article 34, Section 11 of the agreement.(1) She noted that the grievant's supervisor failed to conduct a mid-year progress review, as required by Section 11, and concluded that this violation had deprived the grievant of notice of her shortcomings and an opportunity to improve. As a result, she interpreted and applied Section 11 to preclude the use of any shortcomings that had not been brought to the grievant's attention.(2) As a remedy, the Arbitrator canceled the grievant's performance appraisal for the disputed period. She then assessed whether she could determine what the grievant's ratings would have been had management acted properly.

With respect to element I (program support), the Arbitrator determined that the grievant "should have been rated" level 4 ("excellent").(3) Id. at 23. She found that the grievant exhibited exceptional initiative and analytical skills and that her work in support of the program exceeded the standards for "fully successful." She also noted that the grievant's supervisor presented her with nonmonetary recognition of her work on a project and recommended her for promotion during the appraisal year.

On element II (quality of work), the Arbitrator determined that the grievant "should have been rated" level 4. Id. She found that the the grievant was rated down because of shortcomings that her supervisor never brought to her attention.

The Arbitrator determined that the grievant was properly rated level 4 for element III (timeliness). On element IV (supervisory controls), the Arbitrator determined that she "should have been rated" level 4 and that she was "rated down" because of the deteriorated relationship with her supervisor following the office move incident. Id.

On element V (adherence to policies/procedures), the Arbitrator determined that the grievant "should have been rated" level 5 ("outstanding"). Id. at 24. She found that the grievant had never been told that she violated any office policy and that the Agency had failed to credit her for a policy suggestion.

As her award, the Arbitrator sustained the grievance and ordered the Agency to rate the grievant level 4 on elements I, II, III, and IV and level 5 on element V and grant her a summary rating of "excellent." In addition, the Arbitrator ordered the Agency to grant the grievant the performance award corresponding to her summary rating of "excellent" and left the record open for a motion for attorney fees.

III. Exceptions

A. Agency's Contentions

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

First, the Agency contends that insofar as the award orders the grievant's ratings raised, 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). The Agency 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 relevant errors and the grievant's failure to follow policies. 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 argues that the award interferes with management rights by preventing the Agency from holding the grievant accountable for her errors.

The Agency further argues that the order to raise the grievant's ratings is deficient because it is not based on what management would have rated the grievant's performance if she had been provided a mid-year progress review. In addition, the Agency asserts that the order to raise the rating for element V is also deficient because the grievant admitted to at least two incidents of failing to follow policies and procedures, which precludes a level 5 rating under the established standards. The Agency further asserts that with respect to elements IV and V, the Arbitrator disregarded the supervisor's judgment of the weight to be given the grievant's policy suggestion and the elements under which it should be evaluated.

Second, the Agency contends that the order to raise the grievant's ratings is contrary to rules and regulations. The Agency claims that this order violates 5 C.F.R. § 430.204(d)(2)(4) because it "immunizes [the grievant] from accountability for errors or failures to meet lawful organizational goals or objectives." Exceptions at 7. The Agency maintains that the cited regulation, its performance appraisal regulations, and "basic workplace rules," id. at 36, allow management to consider in performance appraisals the accuracy of spelling and grammar, the completeness of reports, and the observance of policies. The Agency claims that the order to raise the grievant's ratings is contrary to these rules and regulations because the Arbitrator disregarded all the examples of the grievant's performance that evidenced inaccuracy, incompleteness, and the failure to observe policies. The Agency also claims that the award is contrary to career-ladder promotion and nonmonetary recognition regulations to the extent that it ordered the grievant's rating raised for element I. The Agency maintains that, by relying on the supervisor's recommendation of the grievant for promotion and nonmonetary recognition, the Arbitrator established a requirement that employees be rated "excellent" whenever they receive any nonmonetary recognition or a promotion during the rating period.

Third, the Agency contends that the order to raise the grievant's ratings fails to draw its essence from the parties' collective bargaining agreement. The Agency claims that the Arbitrator misinterpreted the agreement by finding a contractual requirement to bring shortcomings to the grievant's attention.

Fourth, the Agency contends that the order to raise the grievant's ratings is based on nonfacts. The Agency asserts that the Arbitrator erroneously found that the grievant's supervisor never discussed with the grievant her grammar and spelling errors and failure to follow policies. The Agency also asserts that the Arbitrator erroneously found that the grievant's supervisor retaliated against her and was to blame for the communication problems.

Fifth, the Agency contends that the Arbitrator exceeded her authority to the extent she ordered the grievant's ratings raised. The Agency argues that the Arbitrator decided an issue that was not before her when she altered the content of the performance standards and restricted the supervisor's reliance on errors the grievant made in performing her work.

B. Union's Opposition

The Union contends that the Agency has failed to establish that the award is deficient. The Union argues that the Arbitrator correctly enforced the collective bargaining agreement and applicable law in ordering the grievant's ratings raised. The Union asserts that the award is consistent with SSA and that the Agency "glosses over" the Arbitrator's finding that the grievant's supervisor retaliated against her because of the office move incident. Opposition at 13. The Union also argues that the Agency's other exceptions provide no basis for finding the award deficient.

IV. Analysis and Conclusions

A. The Award Is Contrary to Section 7106(a) Insofar as it Pertains to Elements I and IV; the Remaining Portions of the Award Are Not Contrary to Section 7106(a)

1. Analytical Framework

In U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA No. 21 (1997) (BEP), we revised the two-prong test set forth in SSA for determining whether an arbitration award resolving a performance appraisal grievance impermissibly affects management rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. This revision is based on the plain wording of section 7106 of the Statute and the decision in IRS v. FLRA, 494 U.S. 922 (1990). BEP, slip op. at 7. We recognized that with a limited exception,(5) an arbitration award that affects management rights under section 7106(a)(2) may provide a remedy only in two circumstances: (1) for a violation of applicable law, within the meaning of section 7106(a)(2); or (2) for a violation of a contract provision that comes within the scope of section 7106(b), which constitutes an exception to section 7106(a). Id. at 7-8.

Under prong I of the BEP analysis, 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. Id. at 8. In addition, the violation must have affected that rating. Id. Under this analysis, the Authority will find an award deficient if the arbitrator canceled an appraisal rating solely because management failed to apply the established 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.

Under prong II of the BEP analysis, the remedy awarded must reflect a reconstruction of what management's appraisal of the grievant would have been if management had not violated either an applicable law or a contract provision on a section 7106(b) matter. Id. at 9. 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 to reevaluate the grievant's performance. Id.

2. Application of BEP Analytical Framework

a. Prong I

Applying the BEP analysis in this case, we conclude that the Arbitrator's cancellation of the grievant's appraisal was proper insofar as it was based on her finding that the Agency violated Article 34, Section 11 in applying the established performance standards for the appraisal period in dispute.(6) Based on the Arbitrator's finding that the Agency violated the collective bargaining agreement "when it appraised [the grievant] in the 1993 appraisal year[,]" we are persuaded that the violation of Article 34, Section 11 affected the grievant's entire appraisal. Award at 22.

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. BEP, slip op. at 9. By canceling the grievant's appraisal on the basis of the Agency's violation of Article 34, Section 11, the award affects the exercise of those rights. However, we find that Article 34, Section 11, as interpreted and applied by the Arbitrator, constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute and was enforced by the Arbitrator consistent with Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service).

As interpreted and applied by the Arbitrator, Article 34, Section 11 required the grievant's supervisor to notify the grievant of any performance shortcomings before the supervisor could use such shortcomings in the grievant's annual appraisal. We find that this provision provides relief to ameliorate the adverse effects on employees of being evaluated on shortcomings that supervisors never brought to their attention during the appraisal period. Therefore, as the provision addresses adverse effects flowing from the exercise of management rights, it constitutes an arrangement. See BEP slip op. at 10 (and cited cases). Because the provision reserves to management the right to evaluate all performance shortcomings under established performance standards that have been brought to the employee's attention, its enforcement clearly does not abrogate management rights under section 7106(a)(2)(A) and (B).(7) Accordingly, the Arbitrator's cancellation of the grievant's performance ratings as a remedy for the Agency's violation of Article 34 is not contrary to law.

b. Prong II

After canceling the grievant's performance appraisal for the disputed period, the Arbitrator separately determined the "appropriate rating" for each of the grievant's job elements. Award at 22. The Arbitrator's determinations for elements I, II, IV, and V are disputed.

(1) Element I

We conclude that the Arbitrator's order to raise the grievant's rating for element I is not based on a reconstruction of what management would have rated the grievant had it acted properly. In ruling that the grievant should have been rated level 4, the Arbitrator found that the grievant's performance exceeded the standards for "fully successful." The Arbitrator did not state and the record does not otherwise indicate that this finding was based on a determination by the Arbitrator as to what management would have rated the grievant's performance if management had not violated Article 34, Section 11 of the collective bargaining agreement. Instead, the Arbitrator independently evaluated what the grievant's rating should have been. Accordingly, the award is deficient as contrary to section 7106(a)(2)(A) and (B) insofar as the Arbitrator ordered the rating raised to level 4.

(2) Element II

We conclude that the award is not deficient insofar as the Arbitrator ordered the rating for element II raised. As interpreted and applied by the Arbitrator, Article 34, Section 11 required the grievant's supervisor to notify the grievant of any performance shortcomings before the supervisor could use such shortcomings in the grievant's annual appraisal. The Arbitrator found that the grievant's supervisor failed to notify the grievant as required by Section 11 and that it was "clear that the grievant was rated down because of" shortcomings that were never brought to the grievant's attention. Id. at 23. This constitutes a determination by the Arbitrator that management would have rated the grievant level 4 had it fulfilled the requirements of Section 11.

The Agency claims that the award is deficient because the reconstruction is not based on a failure to provide a progress review. We disagree. The Agency has misapprehended that the violation found by the Arbitrator was more extensive than merely failing to provide a progress review. The Arbitrator interpreted and applied Article 34, Section 11 to preclude the use of any shortcomings that had not been brought to the grievant's attention and found that the Agency violated Section 11 by using such shortcomings in appraising the grievant. 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. See BEP, slip op. at 11.

Accordingly, the award is not contrary to management rights insofar as the Arbitrator ordered the rating raised to level 4.

(3) Element IV

We conclude that the Arbitrator's order to raise the grievant's rating for element IV is not based on a reconstruction of what management would have rated the grievant had it acted properly. The Arbitrator attributed the supervisor's rating of the grievant to the "deteriorated relationship" between the grievant and her supervisor and found that the grievant should have been rated level 4. Award at 23. Thus, the raised rating is based on the animus and retaliation finding by the Arbitrator, rather than a violation of Article 34, Section 11. Under the revised analysis of BEP, the animus and retaliation finding cannot support a raised rating under prong II because it has no specified or apparent connection to applicable law or a contract provision on a section 7106(b) matter. Accordingly, the award is deficient as contrary to section 7106(a)(2)(A) and (B) insofar as the Arbitrator ordered the rating raised to level 4.

(4) Element V

We conclude that the award is not deficient insofar as the Arbitrator ordered the rating for element V raised. The Arbitrator acknowledged the alleged shortcomings of the grievant with respect to office policy and procedure, but specifically found that the grievant's supervisor had never "informed her before issuing her 1993 appraisal of any of her alleged shortcomings." Id. at 19. When she specifically addressed the grievant's rating for element V, the Arbitrator additionally noted that the "only evidence that [the grievant] failed to follow office policies and procedures was that she gave short notice before taking extended leave[.]" Id. at 24. The Arbitrator rejected such evidence because the grievant's supervisor approved the leave without telling the grievant that the request violated any rule.

As discussed above, the Arbitrator determined that Article 34, Section 11 precluded the supervisor from lowering the grievant's performance rating in reliance on any violations of office policy or procedure never brought to the grievant's attention. Accordingly, having ruled that the Agency had brought no shortcomings to the grievant's attention, it is clear that the Arbitrator concluded that there was nothing under the established standards on which, consistent with Section 11, the Agency could rate the grievant lower than "outstanding." Therefore, when she determined that the grievant's performance warranted a rating of level 5 under the established standards, the Arbitrator was reconstructing what management would have rated the grievant if it had fulfilled the requirements of Section 11.

As with element II, we reject the Agency's claims that the reconstruction is deficient and that the Arbitrator altered the established standards. Accordingly, the award is not contrary to management rights insofar as the Arbitrator ordered the rating raised to level 5.

B. The Award Is Not Contrary to Any Governing Rule or Regulation (8)

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.(9) Exceptions at 7. The Arbitrator did not prohibit the Agency from considering accuracy of spelling and grammar, completeness of reports, and observance of policies in performance appraisals; she merely enforced the Agency's agreement to notify employees of shortcomings prior to using them in appraisals. Nothing in section 430.204(d)(2) prohibited the Arbitrator from enforcing the Agency's agreement not to consider these matters unless they were brought to the grievant's attention. See BEP, slip op. at 12.

We similarly conclude that the award is not contrary to 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 inaccuracy, incompleteness, and failure to observe policies, 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 not to consider these matters unless they were brought to the grievant's attention. Id. at 12-13.

Accordingly, we deny this exception.(10)

C. The Award Does Not Fail to Draw Its Essence From the Agreement

The Arbitrator interpreted and applied Article 34, Section 11 as requiring the grievant's supervisor to notify the grievant of any performance shortcomings before he could use such shortcomings in the appraisal of the grievant. The Agency has not established that this interpretation disregards the agreement or is irrational, unfounded, or implausible. Accordingly, we deny this exception. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

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 erroneously found that the grievant's supervisor never discussed with the grievant her grammar and spelling errors and failure to follow policies. However, it is clear that the parties disputed before the Arbitrator whether the grievant's supervisor informed the grievant about these shortcomings. Consequently, the Agency's assertions provide no basis for finding the award deficient as based on a nonfact. Id. Accordingly, we deny this exception.(11)

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 Arbitrator properly canceled the grievant's entire performance appraisal, but the award is deficient insofar as the Arbitrator ordered the ratings raised for elements I and IV. Accordingly, the award is modified to strike the order to: (1) raise the grievant's rating for elements I and IV; (2) raise the grievant's summary rating to "excellent"; and (3) pay her a performance award. This matter is remanded for management to reevaluate the grievant on elements I and IV, in accordance with Article 34, Section 11, and to grant the grievant the appropriate summary rating and any benefits attributable to such summary rating. Otherwise, the Agency's exceptions are denied.

APPENDIX

The applicable performance standards provide:

Element I (program support)

EXCELLENT: Demonstrates initiative in using analytical skills to perform tasks related to the support of operational programs. Makes contributions that lead to the successful completion of assignments. Maintains awareness of program requirements and issues.

FULLY SUCCESSFUL: Performs tasks and functions using analytical skills to assist in the production of Bureau products. Assists in the successful completion of assignments.

Element II (quality of work)

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 include recommendations.

Element IV (supervisory controls)

EXCELLENT: Reports and updates Manager/Senior Analysts as to the status of various projects relating to the Bureau's Production of products. Seeks and/or suggests projects.

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.




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

1. Article 34, Section 11 pertinently provides:

(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.

2. 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. The applicable performance standards are set forth in an appendix.

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. For the reasons discussed in BEP, slip op. at 7 n.7, matters involving official time under section 7131(d) of the Statute are subject to the "carve-out" doctrine and, as such, constitute a separate exception to the exercise of management rights under section 7106(a).

6. Because the agency bulletin that reminded supervisors to conduct progress reviews clearly does not constitute an applicable law within the meaning of section 7106(a)(2) of the Statute, see National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 389-93 (1991), enforcement denied on other grounds, 996 F.2d 1246 (D.C. Cir. 1993), its violation could not support the award.

7. In this regard, we reject the Agency's reliance on PTO. PTO was a negotiability case and was resolved on the basis of an excessive interference analysis rather than the abrogation analysis required under Customs Service. E.g., U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Immigration and Naturalization Service Council, 42 FLRA 222, 231-32 (1991).

8. Because the raised ratings for elements I and IV are deficient, we review below only the portions of the award pertaining to the cancellation of the appraisal and the raised ratings for elements II and V to determine whether the Agency's remaining exceptions establish that any of these portions of the award are deficient.

9. In 1995, a revised 5 C.F.R. part 430 became effective without a provision comparable to 5 C.F.R. § 430.204(d)(2), as quoted in note 5. However, we have applied the quoted provision because it was in existence at all relevant times, and whatever rights the Agency had under this p