26:0582(70)AR - Federal Grain Inspection Service and National Council of Federal Grain lnspection Locals, AFGE Local 3769 -- 1987 FLRAdec AR



[ v26 p582 ]
26:0582(70)AR
The decision of the Authority follows:


 26 FLRA No. 70
 
 FEDERAL GRAIN INSPECTION SERVICE
 Activity
 
 and
 
 NATIONAL COUNCIL OF FEDERAL GRAIN 
 INSPECTION LOCALS, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, 
 LOCAL 3769
 Union
 
                                            Case No. 0-AR-1229
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This case is before the Authority on exceptions to portions of the
 award of arbitrator John F. Caraway filed by the Activity under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.  /*/
 
                  II.  Background and Arbitrator's Award
 
    A number of grievances were filed and submitted to the Arbitrator
 challenging the propriety of a reduction-in-force (RIF) at the Activity
 which placed a number of employees on a six-month furlough.  As relevant
 to the exceptions before the Authority in this case, the Arbitrator in
 paragraph II of his award resolved the grievances of Mr. Betts and Mr.
 Monroe who both claimed that they should not have been released and
 placed on furlough.
 
    Grievant Betts claimed that he should have received a performance
 appraisal rating at the next higher level for the element of commodity
 grading, and that if he had been properly appraised, he would have been
 retained over another employee who was not furloughed.  The Arbitrator
 first determined that the grievance was timely.  On the basis of
 testimony of union witnesses who testified that they would have rated
 the grievant at the next higher level for commodity grading, the
 Arbitrator further determined that this grievant's rating was incorrect.
  In agreement with the testimony of the union witnesses, he concluded
 that Grievant Betts should have been rated at the next higher level and
 should have been retained over the other employee.  As his award
 resolving this grievance, the Arbitrator in paragraph II. A. ordered
 that this grievant be made whole under the Back Pay Act, 5 U.S.C. 5596,
 for all wages lost as a result of his erroneous furlough.
 
    Grievant Monroe claimed that he should not have been furloughed
 because another employee was retained who had an unsatisfactory
 performance appraisal.  He maintained that under civil service
 regulations the other employee should have been released, and that if
 the other employee had been released, Grievant Monroe would have been
 retained.  The Activity argued before the Arbitrator that under the
 civil service regulations which applied at the time of the RIF, the
 employee with the unsatisfactory rating was not required to be released
 because there was no written decision removing or demoting this employee
 because of unacceptable performance.  Instead, the Activity had detailed
 him to another position.  The Arbitrator determined under applicable
 civil service regulations and a memorandum of understanding restating
 these regulations that this employee should have been released and that
 Grievant Monroe should have been retained until his subsequent
 separation.  As his award resolving this grievance, the Arbitrator in
 paragraph II. B. ordered that this grievant be made whole under the Back
 Pay Act for all wages lost as a result of his erroneous furlough.
 
            III.  Exceptions to Award Resolving Betts Grievance
 
    A.  Contentions
 
    In its first exception, the Activity contends that the award is
 deficient by finding the grievance to be timely.  In its other
 exception, the Activity contends that the award is contrary to section
 7106(a)(2)(A) and (B) of the Statute because the Arbitrator substituted
 his judgment for that of management as to what the grievant's
 performance evaluation should have been.
 
    B.  Analysis and Conclusions
 
    The Activity's exception that the award is deficient by finding the
 grievance timely provides no basis for finding the award deficient and
 is denied.  For example, Naval Air Station, Oceana and Tidewater
 Virginia Federal Employees Metal Trades Council, AFL-CIO, 10 FLRA 20
 (1982).  However, we conclude that the Arbitrator's determination with
 respect to the appraisal of the grievant's commodity grading performance
 is deficient as contended by the Agency.
 
    In Social Security Administration, Office of Hearing and Appeals,
 Region II and American Federation of Government Employees, Local 1760,
 21 FLRA No. 86 (1986), we found that the arbitrator's determination that
 management's appraisal of the grievant violated the parties' collective
 bargaining agreement was deficient.  Under the terms of the Statute and
 Authority precedent, we indicated that in these cases arbitrators must
 confine themselves to an assessment of whether management applied the
 established performance standards to the grievant in the performance
 appraisal and, if so, whether that application complied with applicable
 requirements of law, regulation, or the collective bargaining agreement.
  See Office of Hearings and Appeals, slip op. at 3-5 and cases cited in
 the decision.  We further indicated that when arbitrators do not confine
 themselves to such assessments, their determinations cannot support an
 award of backpay under the Back Pay Act.  Slip op. at 5.
 
    Applying these principles in this case, we find that the Arbitrator's
 determination that the grievant's performance appraisal for commodity
 grading was "incorrect" is deficient.  The Arbitrator did not confine
 himself to an assessment of whether the application of established
 standards to the grievant was in accordance with applicable
 requirements.  Instead, he determined that the rating was incorrect
 because union witnesses testified that they would have rated the
 grievant at the next higher level.  Furthermore, by concluding that the
 grievant should have been rated at the next higher level, the Arbitrator
 improperly conducted an independent evaluation of the grievant's
 performance and improperly substituted his judgment for that of
 management as to what the grievant's performance evaluation should be.
 See Office of Hearings and Appeals, at 3-7 and cases cited in the
 decision.  Consequently, the Arbitrator's determination is contrary to
 section 7106(a)(2)(A) and (B) and cannot provide a basis for an award of
 backpay.  Id. at 7.  Accordingly, paragraph II. A. of the Arbitrator's
 award ordering backpay for Grievant Betts is deficient and must be set
 aside.
 
            IV.  Exception to Award Resolving Monroe Grievance
 
    A.  Contentions
 
    The Activity contends that the award is contrary to Government-wide
 civil service regulations which applied at the time of the RIF.
 Specificially, the Activity argues that the Arbitrator erred by
 determining that the employee with the unsatisfactory rating under the
 Activity's performance appraisal system, which at the time of the
 appraisal and the RIF had been approved by the Office of Personnel
 Management (OPM), was required to be released from the competitive level
 before Grievant Monroe.  The Activity maintains that onc