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56 FLRA No. 112
U.S. DEPARTMENT OF AGRICULTURE
FARM SERVICE AGENCY
OKLAHOMA STATE OFFICE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3354
September 22, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Don J. Harr filed by the Agency under section 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 sustained the Union's grievance, finding that the reviewing official improperly ordered that the grievant's performance appraisal be reduced from a rating of "outstanding" to "superior." As a remedy, the Arbitrator ordered that the grievant's performance rating be restored to "outstanding." For the reasons that follow, we find that the award is not contrary to an Agency regulation. Accordingly, we deny the Agency's exceptions.
The grievant's first line supervisor evaluated her performance and rated her as "exceeds fully successful" on all elements, which resulted in an overall rating of "outstanding" for the year ending September 30, 1998. Over the objection of the first line supervisor, however, the reviewing official ordered that two elements of the grievant's evaluation be reduced to "fully successful," which resulted in an overall rating of "superior." In a February 25, 1999 memorandum, the reviewing official explained that the reduction was necessary because, as outlined in the Farm Service Agency Handbook 5-PM (hereinafter "FSA Handbook"), "`it is my duty . . . to maintain consistency throughout the District.'" Arbitration Award (hereinafter "Award") at 3 (quoting the memorandum). The Union filed a grievance on behalf of the employee, requesting that her overall performance rating be restored to "outstanding."
When the grievance was not settled, the matter was submitted to arbitration. The Arbitrator framed the issue as follows:
Did the performance appraisal given the Grievant . . . for the rating period October 1, 1997 through September 30, 1998, accurately reflect her performance? If not, what is the proper remedy?
Id. at 2.
The Arbitrator noted that the Union "recognizes Management's authority as outlined in FSA Handbook 5-PM, (Revision 9), (Item D), Reviewing Official's Responsibilities[,]" and that "the Union contends that this authority was exercised in an arbitrary and/or capricious manner." Id. at 5. [n1] In this connection, the Arbitrator found that the reviewing official's decision to reduce the grievant's overall rating was "based on . . . unsubstantiated facts and over the strong objection" of her supervisor. Id. In support, the Arbitrator noted that the grievant's past performance had been rated "outstanding." The Arbitrator also found that witness testimony established that the reviewing official had little opportunity to view the grievant's performance, and that testimony and documentary evidence supported the first line supervisor's belief that the grievant had "performed at an outstanding level." Id. The Arbitrator concluded that the grievant's performance appraisal did not accurately reflect her performance. [n2]
As a remedy, the Arbitrator ordered that the grievant's overall performance rating be restored to "outstanding," and that she "be made whole for all loss resulting from the Agency's action." Id. at 6. [ v56 p680 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the FSA Handbook is an Agency regulation. [n3] As such, the Agency argues that the reviewing official had authority to change the grievant's element and summary ratings. [n4] Although the Agency agrees that the Arbitrator correctly interpreted the FSA Handbook to mean that "consistent does not mean the same rating from one [employee] to another," (internal quotation omitted), the Agency excepts to the Arbitrator's remedy on the ground that it "makes[s] it impossible in [the] future for a reviewing official to ever alter the rating a first-line supervisor may give to a subordinate employee." Exceptions at 1. The Agency claims that, because the Arbitrator failed to properly apply the standards contained in the FSA Handbook, the award is deficient "as contrary to law, rule, regulation, or as failing to draw its essence from the negotiated agreement." Id. at 2. In support, the Agency cites U.S. Department of Veterans Affairs, Medical Center, Providence, Rhode Island and Laborers' International Union of North America, Rhode Island Laborers' District Council, Local Union 1056, 49 FLRA 110, 113 (1994).
B. Union's Opposition
The Union argues that the award complies with the Agency's regulations. [n5] While acknowledging that the FSA Handbook gives the reviewing official authority to change performance ratings granted by first line supervisors, the Union contends that such authority "was not intended to be arbitrary or capricious." Opposition at 1. The Union contends that the reviewing official's decision in this case was arbitrary and capricious because, as found by the Arbitrator, the decision was "purely subjective and lacks substantiating facts based on the testimony he presented in the arbitration hearing." Id. In addition, the Union contends that the FSA Handbook requires the reviewing official to exercise his authority in consultation with the first line supervisor, which did not occur in this case. The Union argues that the Arbitrator was correct to support the initial rating because there was "insufficient support [for] the override" made by the reviewing official. Id. at 2.
IV. Analysis and Conclusions
A. The Award is Not Contrary to Agency Regulation
The Agency contends that the award is contrary to the standards contained in the FSA Handbook. For the foregoing reasons, we reject the Agency's argument.
Under section 7122(a)(1) of the Statute, an arbitration award will be found deficient if it conflicts with any law, rule or regulation. Overseas Education Association and U.S. Department of Defense Dependents Schools, Arlington, Virginia, 51 FLRA 1246, 1251 (1996). For purposes of section 7122(a)(1), and subject to 5 U.S.C. § 7116(a)(7), the Authority has defined rule or regulation to include both Government-wide and governing agency rules and regulations. National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, 54 FLRA 1354, 1359 (1998). In circumstances where a party's exceptions involve an award's consistency with law, rule, or regulation, the Authority reviews questions of law raised by the award and the agency's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Here, the Arbitrator found that the grievant's past performance, witness testimony, and documentary evidence supported the first line supervisor's belief that the grievant had performed at an outstanding level. As a result, the Arbitrator determined that the rating ordered by the reviewing official did not accurately reflect the grievant's performance, and ordered that the grievant's performance rating be restored to "outstanding." His [ v56 p681 ] award was based on his view that the regulation did not permit an appraisal to be changed to a rating that was inaccurate in relation to an individual's actual performance. His interpretation was based upon the wording of the regulation, as well as the testimony of an Employee Relations Specialist about its meaning.
Based upon the plain wording of the FSA Handbook, as quoted in the record before us, we find that the Agency cites to nothing in its regulations or the award demonstrating that the Arbitrator erred in resolving the case as he did. In coming to this conclusion, we note that the Agency does not disagree with the Arbitrator's interpretation of the FSA Handbook to mean that individual performance ratings may vary from person to person and still be consistent with Agency policy and guidelines. Moreover, the Agency does not except to the Arbitrator's findings of fact. Rather, the Agency focuses on a reviewing official's authority to change a rating. The award leaves such authority intact, while requiring the exercise of that authority to be consistent with an employee's actual performance. Although neither party cites to government-wide performance appraisal regulations, we note that ratings "shall be based only on the evaluation of actual job performance for the designated appraisal period." 5 C.F.R. § 430.208(a)(1). Therefore, we find that the award is not contrary to the Agency regulation. See, e.g., U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and International Federation of Professional and Technical Engineers, Local 11, 49 FLRA 510, 516 (1994) (agency failed to establish that award conflicted with agency regulation); U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and National Immigration and Naturalization Service Council, Local 46, American Federation of Government Employees, AFL-CIO, 48 FLRA 1269, 1275 (1993) (agency did not demonstrate that award was inconsistent with terms of agency regulation).
B. The Agency's Exception Does Not Establish that the Award Fails to Draw Its Essence From the Parties' Agreement
The Agency states that the award is deficient as "failing to draw its essence from the negotiated agreement." Exceptions at 2. However, the Agency does not specify any provision from which the award allegedly fails do draw its essence under the standard set forth in United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). See also Social Security Administration, Mid-Atlantic Program Service Center and American Federation of Government Employees, Local 1923, 53 FLRA 956, 960-61 (1997); U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997). Accordingly, we deny this exception.
The Agency's exceptions are denied.
Footnote # 1 for 56 FLRA No. 112
The reviewing official shall:
review and approve performance plans and performance appraisals that are prepared by subordinate supervisors to ensure consistency and equity throughout the organizations
. . . .
See FSA Handbook, attached to Agency's Exceptions.
Footnote # 2 for 56 FLRA No. 112
In coming to his conclusion, the Arbitrator disagreed with the reviewing official's interpretation of his duties under the FSA Handbook. Although the Arbitrator agreed with the reviewing official's statement that his duty is to maintain "`consistency throughout the district'," the Arbitrator ruled that "[c]onsistent does not mean the same rating from one [employee] to another." Award at 6. Rather, the Arbitrator found that "[c]onsistent means compatible throughout the organization." Id. As such, the Arbitrator quoted the testimony of an Agency witness who stated that employees should be rated according to their individual performance. See Award at 6.
Footnote # 3 for 56 FLRA No. 112
Footnote # 4 for 56 FLRA No. 112
In support, the Agency cites to Paragraph 65, Item B of the FSA Handbook, which states, in pertintent part, that "[t]he reviewing official has the authority to change element and summary ratings. This should be done in consultation with the first level supervisor." See FSA Handbook, attached to Agency's Exceptions.
Footnote # 5 for 56 FLRA No. 112