[ v26 p582 ]
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 once the appraisal system has been approved by OPM, only employees with written decisions of removal or demotion based on unacceptable performance must be released before any general order of release. B. Analysis and Conclusions We find that the award determining that Grievant Monroe should not have been furloughed is contrary to provisions of 5 CFR part 351 and Federal Personnel Manual (FPM) chapter 351 which applied at the time of the disputed RIF in June 1985. At the time of the RIF, 5 CFR Section 351.602 (c) prohibited the release of a competing employee from a competitive level while retaining in that level an employee with a written decision under 5 CFR part 432 of "removal or demotion from the competitive level because of unacceptable performance." Also at the time of the RIF, and as quoted and applied by the Arbitrator in his award, FPM chapter 351, subchapter 3-2 prohibited releasing a competing employee while retaining an employee with "an 'unsatisfactory' performance rating or a written decision of removal or reduction-in-grade based on 'unacceptable performance.'" The Arbitrator acknowledged that there had been no written decision to remove or demote the employee who concededly had been rated unsatisfactory. However, under subchapter 3-2, he determined that even though there was no written decision of removal or demotion, the Activity was prohibited from releasing Grievant Monroe while retaining the unsatisfactory employee. We conclude that this determination is deficient because these provisions were mutually exclusive: whether a written decision to remove or demote was necessary depended on whether the performance appraisal system under which employees were appraised had been approved by OPM as meeting the requirements of 5 U.S.C. section 4302 and 5 CFR part 430. As was set forth in greater detail in FPM chapter 351, subchapter 2-9d, whether employees with unsatisfactory ratings had to be released before other employees was dependent on the status of the performance appraisal system under which such employees were appraised. If the agency's performance appraisal system at the time of the appraisal and the RIF had not been approved by OPM, the agency would have been prohibited from releasing any competing employees while retaining an employee with a performance rating of unsatisfactory. FPM chapter 351, subchapter 2-9d(1) (July 7, 1981). If the agency's performance appraisal system had been approved by OPM as meeting all applicable requirements, the agency would have been prohibited from releasing competing employees only while retaining an employee with a written decision under 5 CFR part 432 of removal or demotion for unacceptable performance. FPM chapter 351, subchapter 2-9d(2)-(3) (July 7, 1981). The record in this case established that the unsatisfactory employee had been appraised under a performance appraisal system that had been approved by OPM. Under the provisions governing the RIF in June 1985, the Activity was only prohibited from releasing Grievant Monroe while retaining an employee with a written decision of removal or demotion for unacceptable performance. As acknowledged by the Arbitrator, there had been no written decision to remove or demote the employee who had been rated unsatisfactory. Thus, the Arbitrator's determination that this employee should have been released and that the grievant should have been retained is deficient as contrary to civil service regulations and consequently cannot provide a basis for an award of backpay. Accordingly, paragraph II. B. of the Arbitrator's award ordering backpay for Grievant Monroe is deficient and must be set aside. V. Decision Paragraph II of the Arbitrator's award which pertains to Grievants Betts and Monroe is deficient in its entirety and is therefore set aside. Issued, Washington, D.C., April 16, 1987. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III. Member /s/ Jean McKee Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) The Union filed exceptions to other portions of the Arbitrator's award which resolved the grievances of other employees. Those exceptions were denied by the Authority on April 16, 1987, in Case No. 0-AR-1224. In addition, the Office of Personnel Management requested permission to file an amicus brief in support of the Activity. As our decision resolving the exceptions indicates, we have fully considered the issues about which OPM wishes to express its view. In view of our disposition of this case, we deny the request.