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 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.