Federal Energy, Regulatory Commission (Agency) and American Federation of Government Employees, Local 421 (Union)

[ v58 p596 ]

58 FLRA No. 150

FEDERAL ENERGY
REGULATORY COMMISSION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 421
(Union)

0-AR-3634

_____

DECISION

June 18, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Louis Aronin filed by the Agency under § 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 found that the Agency improperly failed to grant the grievant a career-ladder promotion, and he directed a retroactive promotion and make-whole relief. For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      When the Agency did not grant an employee a career-ladder promotion to GS-13, a grievance was filed. The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue as follows: "Was the Grievant . . . improperly denied a career ladder promotion to GS-13? If so, what is the appropriate remedy?" Award at 2.

      The Arbitrator found that the grievant was entitled to a promotion "based on the existence of a career ladder establishing such a promotion and the fact that her work was at a level above that required of a GS-12." Id. at 11. In this connection, the Arbitrator found that the difference between the GS-12 position and GS-13 position was the performance of more complex cases, and that the grievant had performed such cases. See id. at 10-11. [ v58 p597 ]

      The Arbitrator also found that the grievant "was performing at a level warranting a promotion on the stipulated career ladder." Id. at 10. In this connection, the Arbitrator found that the grievant's performance appraisal indicated that she had received "Exceptional" ratings on two critical elements, id., and had performed "successfully" on the other three critical elements, id. at 12. The Arbitrator noted that the appraisal did not indicate any performance deficiencies and that there was "no evidence" that the grievant was informed of any alleged deficiencies. Id. at 10. The Arbitrator stated that, in finding that the grievant's performance warranted promotion, he was not "substitut[ing] [his] judgment for that of the supervisor[,]" because "the supervisor's [own] documented rating [indicated] that the promotion is warranted." Id. at 12 (emphasis in original).

      The Arbitrator determined that "the denial of a promotion . . . constituted a violation of the parties' Agreement, a violation of regulation, and an unwarranted and unjustified personnel action warranting that Grievant be made whole for all losses in pay by denial of the promotion . . . ." Id. Accordingly, the Arbitrator awarded the grievant a retroactive promotion to GS-13 and make-whole relief, noting that the remedies were "in accord with 5 USC 5596." Id.

III.     Positions of the Parties

A.     Agency Exceptions

      The Agency argues that the Arbitrator exceeded his authority by "imposing on the [Agency] additional requirements that are not authorized by statute, regulation, or the parties' agreement." Exceptions at 6. Specifically, the Agency asserts that the performance appraisal form, 5 U.S.C. § 4302, and the parties' agreement do not require the Agency to document performance deficiencies on an employee's performance appraisal. [n1]  The Agency claims that the Arbitrator's imposition of such a requirement fails to draw its essence from the agreement. The Agency also argues that the Arbitrator exceeded his authority by granting the grievant a promotion "based solely on a cursory review" of her performance appraisal. Id. at 8.

      In addition, the Agency contends that the Arbitrator "ignored evidence" in finding that the Agency did not counsel the grievant about her deficiencies. Id. at 7. The Agency also challenges the Arbitrator's finding that the grievant was performing GS-13 work, arguing that "the grievant only occasionally performed" such work. Id. at 8.

      Further, the Agency asserts that the parties' agreement "does not specify the procedures or the conditions under which a career ladder promotion must be made," and as a result, "the Arbitrator did not, because he could not, cite any conditions set out there regarding career ladder promotions." Id. at 9. The Agency also asserts that the award violates management's rights under § 7106(a)(2)(A) and (B) of the Statute. According to the Agency, the Arbitrator improperly substituted his judgment for that of the grievant's supervisor, and that, under 5 U.S.C. § 4302, a supervisor's appraisal of an employee does not necessarily constitute a decision to promote the employee.

      Finally, the Agency argues that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596 because it "does not reflect what the [Agency] would have done without the alleged improper action." Id. at 13. In particular, the Agency contends that the omission of deficiencies from the performance appraisal and the alleged failure to provide the grievant with suggestions on improving her performance do not provide a basis for backpay, especially given that the grievant's supervisor "stated numerous reasons as to why the grievant was not promoted." Id. at 14.

B.     Union Opposition

      The Union argues that the Arbitrator neither required the Agency to document performance deficiencies on performance appraisals, nor granted the promotion based solely on a cursory review of the grievant's
[ v58 p598 ] performance appraisal. The Union disputes the Agency's argument that the Arbitrator did not specify what provisions entitled the grievant to promotion, and argues that, in any event, "there is no legal requirement that the Arbitrator must cite a contractual provision containing specific language" mandating a promotion. Opp'n at 6. Further, the Union argues that the award does not violate management rights because the career ladder promotion was "essentially a ministerial act to promote an employee who was already appointed to a position having promotion potential[,]" and the Arbitrator was merely implementing the supervisor's rating of the grievant's performance. Id. at 7.

IV.     Analysis and Conclusions

A.     The Arbitrator did not exceed his authority.

      The Agency argues that the Arbitrator exceeded his authority by finding that the Agency is required to document performance deficiencies on employees' appraisals, and by granting a promotion based solely on his "cursory review" of the grievant's performance appraisal. Exceptions at 8. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).

      With regard to the Agency's first argument, the Arbitrator did not find that the Agency was required -- by the appraisal form, law, contract, or otherwise -- to document performance deficiencies on employees' appraisals. The Arbitrator merely relied on the absence of such documented deficiencies in declining to credit Agency witness testimony that the grievant's performance was deficient. Thus, the Agency's first argument -- including its essence assertion and its citation to 5 U.S.C. § 4302 -- is misplaced and does not provide a basis for finding the Arbitrator exceeded his authority.

      With regard to the Agency's second argument, even assuming that the Arbitrator granted the promotion based solely on a "cursory review" of the performance appraisal, the Agency does not demonstrate that the Arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, or awarded relief to persons not encompassed within the grievance. Further, as the Agency cites no specific limitations on the Arbitrator's authority in this case, the Agency does not demonstrate that the Arbitrator disregarded specific limitations on his authority.

      Accordingly, we deny the exception.

B.     The award is not based on nonfacts.

      The Agency challenges the Arbitrator's findings that: the grievant's supervisor did not inform the grievant of performance deficiencies; and the grievant was performing the work of a GS-13 position. We construe the Agency's arguments as alleging that the award is based on nonfacts.

      To establish that an award is based on a nonfact, the excepting party must establish that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties had disputed before the arbitrator. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      Before the Arbitrator, the parties disputed whether the grievant's supervisor informed the grievant of performance deficiencies and whether the grievant was performing the work of a GS-13 position. See Award at 5-6. Therefore, the Agency's arguments do not provide a basis for finding that the award is based on a nonfact, and we deny the exception.

C.     The award draws its essence from the parties' agreement.

      The Agency argues that the parties' agreement does not specify the conditions for promotion. We construe this argument as an assertion that the award fails to draw its essence from the agreement. See, e.g., United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 58 FLRA 413, 414 (2003) (Authority applied essence standard to review arbitral interpretation of contract provision setting forth conditions for promotion).

      In resolving exceptions that challenge an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential "essence" standard of review that the Federal courts apply in reviewing awards in the private sector. See, e.g., SSA, Woodlawn, Md., 54 FLRA 1570, 1579 (1998) (citing United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (DOL)). In order for an award to be found deficient as failing to draw its essence from the agreement, it must be established 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 [ v58 p599 ] and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. DOL, 34 FLRA at 575. The Authority and courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Arbitrator found that the grievant was performing GS-13 work and that she received a fully successful performance appraisal. The Arbitrator concluded that, as a result, the Agency's failure to promote the grievant violated the parties' agreement. See Award at 12. Thus, the Arbitrator implicitly found that the parties' agreement required the grievant's promotion upon the performance of GS-13 work and a fully successful performance appraisal. An award does not fail to draw its essence merely because an arbitrator fails to identify the specific provisions of the agreement that were violated. See United States Dep't of the Interior, Bureau of Indian Affairs, Chemawa Indian Boarding Sch., Salem, Or., 49 FLRA 667, 676-77 (1994); United States Dep't of the Air Force, Tinker Air Force Base, Okla., 42 FLRA 1342, 1349-50 (1991) (Air Force). Accordingly, the fact that the Arbitrator did not specify what contract provision was violated does not demonstrate that the award fails to draw its essence from the agreement, and we deny the exception.

      D.     The award is not contrary to law.

      The Agency claims that the award is contrary to law in various respects. When an exception involves an arbitration award's consistency with law, the Authority reviews the question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     Section 7106(a)(2)(A) and (B) of the Statute.

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). [n2]  If it does not, then the Authority does not apply the BEP framework. See United States DOD, Marine Corps Logistics Base, Albany, Ga., 57 FLRA 275, 277-78 (2001) (Marine Corps Logistics Base).

      The Authority has held that an arbitral award of a career ladder promotion does not affect the right to assign work under § 7106(a)(2)(B) of the Statute. See United States Dep't of HHS, Office of the Assistant Sec'y for Mgmt. & Budget, Office of Grant & Contract Fin. Mgmt., Div. of Audit Resolution, Wash., D.C., 51 FLRA 747, 751 (1996) (HHS), reconsideration denied, 51 FLRA 982. Instead, such a promotion merely implements a decision to assign work that was made when the agency initially selected the employee for the career ladder position. See HHS, 51 FLRA at 751. "Once an employee is selected into a career ladder position, the intention of the career ladder is, . . . to prepare the employee for successful noncompetitive promotions when the conditions prescribed by agreement or regulation are met." Id. We find no basis for applying a different principle in connection with management rights under § 7106(a)(2)(A) of the Statute. Cf. NTEU, 32 FLRA 1141, 1148-49 (1988) (Authority applied same principle to right to determine organization under § 7106(a)(1)); AFGE Local 17, AFL-CIO, 24 FLRA 424, 425-26 (1986) (Authority applied same principle to right to select under § 7106(a)(2)(C)).

      Although the Agency acknowledges that an arbitrator may examine a collective bargaining agreement in order to determine whether the requisite conditions for promotion are met, the Agency argues that the parties' contract does not contain any such conditions, and thus, that the Arbitrator had no basis for finding that a promotion was warranted. However, as discussed previously, the Arbitrator implicitly found that the contract does contain such conditions -- performance of GS-13 work and a fully successful performance appraisal -- and the Agency has not demonstrated that this finding fails to draw its essence from the agreement. As such, we find that the award does not affect management rights under [ v58 p600 ] § 7106(a)(2)(A) and (B) of the Statute, and we deny the exception. [n3] 

2.     5 U.S.C. § 4302

      The Agency argues that, under 5 U.S.C. § 4302, a supervisor's appraisal of an employee does not necessarily constitute a decision to promote the employee. However, nothing in § 4302 precludes an arbitrator from finding that, under a collective bargaining agreement, a successful performance appraisal (along with performance of higher-graded duties) entitles an employee to a promotion. Accordingly, the Agency provides no basis for finding the award contrary to § 4302, and we deny the exception.

3.     The Back Pay Act, 5 U.S.C. § 5596.

      Under the Back Pay Act, 5 U.S.C. § 5596, an award of backpay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials. See United States Dep't of Def., Def. Commissary Agency, Fort Lee, Va., 56 FLRA 855, 859 (2000).

      With regard to the first requirement, a breach of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See GSA, 55 FLRA 493, 496 (1999). An arbitrator's finding of a contract violation satisfies this requirement even if the arbitrator fails to specify what contract provision was violated. See United States DOD, Army & Air Force Exch. Serv., Dallas, Tex., 49 FLRA 982, 991-93 (1994) (finding that agency violated "law, regulations, and the collective bargaining agreement" sufficient); Air Force, 42 FLRA at 1347 (finding that agency "violated the Labor Contract"). Applying this precedent, the Arbitrator's finding that the Agency violated the parties' agreement satisfies the first Back Pay Act requirement.

      With regard to the second requirement, the Authority has found that a direct causal connection may be "implicit from the record and the award." United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 52 FLRA 938, 942 (1997) (citing AFGE, Local 31, 41 FLRA 514, 519 (1991)). The Authority has found this requirement met where an arbitrator found that an agency violated an agreement's promotion provisions and it was not disputed that the failure to be promoted resulted in a loss of pay to the grievant. See id. at 518. See also NFFE, Local 2030, 56 FLRA 667, 673 (2000) (award satisfied Back Pay Act where arbitrator found agency failed to comply with agreement by failing to initiate nondiscretionary process to give grievant timely career-ladder promotion).

      The Arbitrator found that the denial of the promotion violated the parties' agreement, and he directed that the grievant "be made whole for all losses caused by the failure to promote her to GS-13 . . . ." Award at 14. It is undisputed that this failure to promote resulted in a loss of pay to the grievant. In these circumstances, we conclude that the award and the record provide a sufficient basis for finding that the unjustified and unwarranted personnel action directly resulted in the loss of pay to the grievant and, thus, that the award satisfies the second Back Pay Act requirement.

      Accordingly, we deny the exception.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 58 FLRA No. 150 - Authority's Decision

   5 U.S.C. § 4302, "Establishment of performance appraisal systems," provides, in pertinent part:

(a) Each agency shall develop one or more performance appraisal systems which--
     (1) provide for periodic appraisals of job performance of employees;
. . . .
     (3) use the results of performance appraisals as a basis for . . . promoting . . . employees.
     (b) [E]ach performance appraisal system shall provide for--
          (1) establishing performance standards
. . . ;
          (2) communicating to each employee the performance standards and the critical elements of the employee's position;
          (3) evaluating each employee during the appraisal period on such standards;
          (4) recognizing and rewarding employees whose performance so warrants; [and]
          (5) assisting employees in improving unacceptable performance . . . .

Footnote # 2 for 58 FLRA No. 150 - Authority's Decision

   Under prong I of the BEP framework, the Authority examines whether an award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153-54. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.