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The decision of the Authority follows:
47 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF AGRICULTURE
FEDERAL CROP INSURANCE CORPORATION
KANSAS CITY, MISSOURI
April 21, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Sol M. Yarowsky filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance challenging the implementation of an Equal Opportunity/Civil Rights (EO/CR) critical element in the performance plans of bargaining unit employees. For the following reasons, we conclude that the award must be remanded to the parties.
II. Background and Arbitrator's Award
The Union filed a grievance regarding the inclusion of the EO/CR critical element in the performance plans of bargaining unit employees.(1) Before the Arbitrator the Union argued, among other things, that the EO/CR critical element was inconsistent with 5 U.S.C. chapter 43 and Federal Personnel Manual (FPM), Chapter 430 because it was discriminatory, outside the employees' control and not measurable at any of the performance levels established by the Agency. The Union also argued that the critical element could not be implemented because the Union was not properly notified of it prior to the start of the rating period to which the element would be applied and the parties had not negotiated over the issue as required by section 7114(b)(2) of the Statute. The Union further argued that the issue of whether the EO/CR critical element was properly implemented was arbitrable. In support of its contention, the Union relied on Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987) (Newark) for the proposition that an arbitrator may determine the legality of performance standards and critical elements apart from their application in a performance appraisal. The Union requested that the Agency refrain from evaluating bargaining unit employees under the EO/CR critical element until the Agency has bargained over the procedures by which "the principles of EEO and Civil Rights will be adopted." Award at 5.
The Agency claimed that implementation of the EO/CR critical element in the performance plans of bargaining unit employees was an exercise of its reserved rights under section 7106(a) of the Statute and, therefore, was not grievable or arbitrable. More particularly, the Agency argued that it has the exclusive authority to identify critical elements and to determine the content of performance standards. The Agency further argued that the inclusion of the EO/CR critical element in the performance plans of bargaining unit employees was consistent with applicable law and the parties' collective bargaining agreement. Alternatively, the Agency contended that if the issue was grievable, it was not ripe for adjudication because no employee had been rated for performance appraisal purposes. Accordingly, the Agency requested that the grievance be denied.
There is no evidence in the award that the parties stipulated to the issues for arbitration. Instead, the Arbitrator quoted the following formulation of the issue set forth by the Agency and appears to have adopted it for purposes of his award: "Was the Equal Opportunity/Civil Rights critical element properly included in the FY-1992 performance [plans] for bargaining unit employees?" Id. at 3. In addressing that question, the Arbitrator stated that he could "only comment on what he believes is fair and reasonable in relation to the Equal Opportunity and Civil Rights (EO/CR) element that was incorporated in the employees' performance plan[.]" Id. at 8. Citing Newark and Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA), the Arbitrator explained that he could not determine the content of established performance standards or establish new standards because awards that alter or determine the content of established performance standards are deficient.(2) However, the Arbitrator stated that he could resolve a grievance by an employee claiming to have been adversely affected by management's application of established performance standards.
In this case, the Arbitrator found that although the EO/CR critical element made clear what was expected of an employee in the performance of his or her duties, the FPM required that the standards be made as objective as possible so that the employee's performance is observable and measurable. In the Arbitrator's view, "[p]roof of whether the element is sufficiently objective must await the actual implementation of the EO/CR element." Award at 10. Consequently, the Arbitrator found that because the grievance filed by the Union was not a grievance by an employee claiming to have been adversely affected by the application of established elements and standards, he had "no jurisdiction or authority to submit an advisory opinion as to whether the Agency, in formulating the EO/CR critical performance element, complied with applicable law, regulation, and the parties' collective bargaining agreement." Id. at 11. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is deficient because it is inconsistent with Authority case law, the Statute, and the parties' agreement.
More specifically, the Union contends that in denying the grievance because it did not involve an employee claiming to have been adversely affected by the application of the established elements and performance standards, the award is "in direct conflict" with the Authority's decisions in Newark and SSA. Exceptions at 6. The Union essentially maintains that, in accordance with Newark, the Arbitrator could have determined the legality of the critical element apart from its application in a performance appraisal.
The Union asserts that it had argued to the Arbitrator that the Agency violated 5 U.S.C. &§ 4302, FPM Chapter 430, the Statute and the parties' agreement in establishing and implementing the EO/CR critical element. The Union reiterates its assertions that inclusion of the critical element in the performance plans violates Federal law and regulation because it is beyond the employees' control, discriminatory, not measurable, and inconsistent with the duties contained in the employees' position descriptions. In addition, the Union claims that the Agency failed to notify the Union before the implementation of the new element and did not provide the Union with an opportunity to bargain, as appropriate, in violation of the Statute.
The Union further argues that the award is inconsistent with section 7121(b)(3)(A) of the Statute and Article 18.2(a) of the parties' agreement, both of which refer to matters that may be processed under a negotiated grievance procedure. According to the Union, the award "would deprive the employees and Union of their rights under the Statute and the Negotiated Agreement." Exceptions at 6. Finally, the Union argues that the Arbitrator addressed an issue that was not raised and failed to address other matters that were raised.
B. Agency's Opposition
The Agency contends that the Union's exceptions constitute mere disagreement with the Arbitrator's reasoning and conclusions and provide no basis for finding the award deficient. The Agency notes that there was no agreement or joint stipulation by the parties as to the issue to be decided by the Arbitrator. In the absence of a stipulated issue, the Agency claims that the Arbitrator was free to frame the issues before him and that the Union may not argue that the award is deficient because the Arbitrator improperly framed the issue. In addition, the Agency maintains, generally, that arbitrators are not required to make specific findings of fact, to discuss each of the cases or regulatory citations raised by parties, or to address all of the provisions of parties' agreements claimed to be applicable.
The Agency further contends that the award is consistent with Authority case law. In this regard, the Agency claims that management's right to direct and assign work under section 7106(a)(2)(A) and (B) includes the right to identify critical job elements and that awards that improperly interfere with the exercise of those rights are deficient. The Agency maintains that the Arbitrator correctly stated that he could not alter or determine the content of established performance standards and, therefore, that he correctly concluded that he could not determine whether the establishment of the EO/CR critical element complied with applicable law, regulation, and the parties' agreement until the performance standard was actually applied to an employee. However, the Agency also states that even if the Arbitrator's denial of the grievance on the basis that it was not filed by an employee was incorrect, there is no basis on which to set aside the award where, as here, "the overall decision" is correct. Opposition at 11.
With regard to the other issues raised by the Union in its exceptions, the Agency claims that the Union was aware of the implementation of the EO/CR critical element and was provided with an opportunity to negotiate over the impact and implementation of the critical element. In addition, the Agency argues that the EO/CR critical element satisfied the requirements of the FPM. In connection with these issues, the Agency contends that the Union is attempting to relitigate the merits of the grievance before the Authority and that the Union's exceptions do not provide an adequate basis for finding the award deficient.
IV. Analysis and Conclusions
The Arbitrator found that "[u]nder guiding and binding principles announced in cases decided by the . . . Authority," he was without jurisdiction to determine whether the Agency complied with applicable law, regulation, and the parties' agreement "in formulating the EO/CR critical performance element[.]" Award at 11. Because the Arbitrator's conclusion is contrary to Authority case law, we find that the award is deficient. We will remand this case to the parties for further proceedings as described below.
From a reading of the award, it is apparent that the issue before the Arbitrator was whether inclusion of the EO/CR critical element in the performance plans of bargaining unit employees was consistent with law, rule, and regulation. Thus, in finding that he was without jurisdiction to resolve the grievance, the Arbitrator referenced the disputed matter as whether the Agency's formulation of the EO/CR critical element complied with law, regulation, and the parties' agreement.
In Newark, the Authority held that an arbitrator may examine the performance standards and critical elements established by management in order to determine whether they comply with applicable legal and regulatory requirements, particularly the provisions of 5 U.S.C. &§ 4302 and 5 C.F.R. Chapter 430. Newark, 30 FLRA at 636. Moreover, an arbitrator may make that determination regardless of whether an employee has been evaluated against the performance standards or elements in question. Id. at 638. As the Authority stated in Newark, "[t]he requirement that standards comply with law does not arise only at the time at which an employee is evaluated against those standards; the standards must comply with law at the time that management establishes them for employees." Id. at 631. In this case, there was no stipulation or formulation of the issue that served to limit the Arbitrator's consideration of the EO/CR critical element to its application to a bargaining unit employee. Consequently, in denying the grievance solely because no bargaining unit employee had been evaluated against the EO/CR critical element, the Arbitrator failed to apply the Authority's holding in Newark, which permits an arbitrator to assess an element's compliance with law at the time of the element's establishment. The Arbitrator's conclusion that he lacked jurisdiction to assess whether the establishment of the EO/CR critical element was consistent with applicable law and regulation is contrary to Authority case law and must be set aside.
Although the Arbitrator correctly stated that he could not determine the content of established standards or establish new standards, the Arbitrator would not be required to make such a determination in resolving a grievance alleging that management established a critical element in violation of applicable law and regulation. Rather, if the Arbitrator were to find that the Agency did not comply with applicable legal requirements in establishing the EO/CR critical element, the appropriate remedy would be for the Arbitrator to direct the Agency to establish an element that did comply with applicable law and regulation. See id. at 636-37. Unless the parties specifically excluded grievances challenging the legality of performance standards from the scope of the negotiated grievance procedure contained in their agreement, concerning which there is no evidence in this case, there is no "per se bar to arbitrability." Id. at 636.
Insofar as the Arbitrator erroneously determined that he lacked the authority to resolve the issue as to whether the EO/CR critical element is consistent with law, rule, and regulation, we will remand the dispute to the parties for resubmission to the Arbitrator for resolution of the matter in accordance with this decision.(3) See, for example, American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 37 FLRA 386 (1990) (award in which arbitrator incorrectly ruled that grievance was not arbitrable because it concerned a classification matter remanded to parties for resubmission to arbitrator for purposes of rendering award on merits of grievance). See also National Labor Relations Board and National Labor Relations Board Union, 44 FLRA 1223 (1992) (award in which arbitrator failed to assess proper legal standard remanded to arbitrator for appropriate determination).
The award is set aside. The dispute is remanded to the parties for action consistent with this decision.
(If blank, the decision does not have footnotes.)
1. The "fully successful standard" as developed by the Agency for the EO/CR critical element is as follows:
Performs all duties in a manner which consistently demonstrates fairness, cooperation, and respect toward co-workers, office visitors, and all others in the performance of official business. Demonstrates an awareness of EO/CR policies and responsibilities.
Award at 2-3.
2. Although the Arbitrator referred to the content and establishment of performance standards, it is clear that the dispute in this case pertains only to the EO/CR critical element.
3. In view of our decision, it is unnecessary to address the Union's remaining exceptions.