Arbitrator Blanca E. Torres found that the Agency violated Article 27, Section 5(E) of the parties’ collective‑bargaining agreement (Article 27) and § 7116(a)(1) and (5) of the Federal Service Labor‑Management Relations Statute (the Statute)^[1] by changing how the Agency enforced one of its performance standards. As a remedy, the Arbitrator directed the Agency to return to the status quo ante and bargain over the impact and implementation of the change. This case presents us with four substantive questions. 

 

 

 

                And the fourth question is whether the award is contrary to § 7106(a) of the Statute because the Arbitrator’s remedies for the Agency’s contractual violation and unfair labor practice (ULP) “violate[] management rights by specifying the substantive content of a performance standard.”^[2] Because § 7106 does not limit the Arbitrator’s authority under the Statute to remedy ULPs, the Agency’s reliance on § 7106 provides no basis for setting aside the Arbitrator’s remedies insofar as they remedy the ULP. And, because the finding of a ULP is a sufficient ground – separate and independent from the Arbitrator’s finding of a contractual        violation – for the remedies, we find it unnecessary to determine whether the contractual violation also supports those remedies.

 

 

The Agency evaluates its attorneys based, in part, on how many “decisions, remands, and request[s] [for] medical opinions” they produce (the productivity element).^[3] Specifically, attorneys earn credits for drafting these documents, and the productivity element requires attorneys to earn 156 credits per fiscal year (the annual quota). When the Agency allegedly changed the manner in which it enforced the productivity element, the Union requested bargaining. The Agency refused to bargain, and the Union filed a grievance that went to arbitration. 

 

 

The Arbitrator stated that “[t]he Agency has consistently tracked attorneys’ productivity requirements on a weekly basis.”^[5] Specifically, the Arbitrator found that, when the Agency first introduced the productivity element, it used a “fair[-]share chart” with “weekly goal[s]” to track attorneys’ progress toward meeting the annual quota (the original chart).^[6] Using the original chart, Agency managers considered an attorney “green” if the attorney was on track to meet the annual quota and “yellow” if he or she fell behind weekly productivity goals.^[7] However, the original chart included a buffer (the margin) between the green and yellow zones so that an attorney could fall slightly behind the green productivity goals, and yet the managers would not treat the attorney as yellow. Throughout the year, the margin would decrease. For example, during the first quarter, attorneys’ productivity would fall within the           margin – and they would not be “yellow” – if they were at 75% of the weekly goal.^[8] But, during the third quarter, their productivity would fall within the margin only if they were at 85% of the weekly goal.   As the year drew to a close, managers required attorneys to close the gap and earn enough credits to meet the annual quota by the last week of the year.^[9]

 

The Arbitrator found that, at the beginning of a new fiscal year, the Agency issued a revised fair-share chart (the new chart) that “eliminated any margin between the ‘green’ and ‘yellow’ zones.”^[10] According to the Arbitrator, this meant that an attorney would now be “deemed ‘yellow’ within any given week should he or she fall a mere 0.5 credits behind what is considered ‘green.’”^[11] As a result, the Arbitrator found that attorneys who fell behind the weekly goal by as few as 0.5 credits were subject to pre‑disciplinary communications by supervisors, which could lead to lower performance ratings. At arbitration, the Union argued that this “strict weekly enforcement” of the productivity element was a “new management practice.”^[12] The Agency disputed that argument, claiming that it had “consistently . . . enforced” attorneys’ productivity goals on a weekly basis prior to implementation of the new chart,^[13] and that the new chart was “merely a tool for management personnel.”^[14] 

 

The Union asked the Arbitrator to direct the Agency to “institute quarterly review, using as a guide the prior production schedule [(the original chart)].”^[15] Similarly, in her analysis, the Arbitrator repeatedly referred to the use of the original chart – with weekly goals that changed according to the quarter – as “quarterly enforcement”^[16] or “quarterly review.”^[17] And she referred to the implementation of the new chart as the “elimination of quarterly enforcement”^[18] because she found that the new chart “eliminated the percentage margin allowing attorneys to produce a certain percentage of credits each quartertoward their annual quota” and, instead, “required [attorneys] to complete three credits per week.”^[19] In this regard, the Arbitrator characterized implementation of the new chart as a “strict weekly enforcement of a weekly quota,”^[20] and she rejected the Agency’s argument that the chart was “merely a tool for management personnel” rather than a production schedule.^[21] 

 

Relatedly, the Arbitrator rejected the Agency’s argument that implementing the new chart was only a de minimis change to attorneys’ conditions of employment. Specifically, she found that “having to meet the quota of three credits a week, each and every week . . . took a policy whose application was reasonable[] into a realm of strict application [that had an] adverse[] impact[] on the employees.”^[22] For example, she found that the change affected attorneys’ conditions of employment by: (1) increasing the unpaid overtime that attorneys felt compelled to work in order to meet weekly goals; (2) limiting the use of leave, because attorneys were expected to meet goals even for weeks when they were on approved leave; (3) disadvantaging attorneys whose work was not promptly reviewed, thereby preventing the attorneys from earning credits in a timely manner; (4) increasing pre‑disciplinary measures that “may lead to reduced appraisal ratings”; and (5) reducing attorneys’ ability to manage their own time by, for example, balancing work time with use of leave.^[23] 

 

While recognizing that the change did not increase the annual quota,^[24] the Arbitrator concluded that the above-listed effects on attorneys’ conditions of employment were “reasonably foreseeable . . . at the time of the change,” and that the Agency therefore had “a duty to give notice to the Union of the change.”^[25] She also found that the Agency gave the Union no notice of the change, and that the Union made a timely request for impact and implementation bargaining, which the Agency denied.

 

Accordingly, the Arbitrator found that the Agency violated “its duty to engage in impact and implementation bargaining” over the change^[26] under § 7116(a)(1) and (5) of the Statute. 

 

“[A]s a separate matter,”^[27] the Arbitrator found that the Agency violated Article 27, which requires the Agency to give the Union advance written notice of any changes to performance standards, and to “meet all bargaining obligations.”^[28] 

 

As to remedy, the Arbitrator applied the factors set forth in Federal Correctional Institution^[29] and concluded that status quo ante relief was appropriate. Thus, the Arbitrator directed the parties to “return to the status quo ante, i.e., enforcement of the quota on a quarterly basis,” until the parties completed bargaining over any Agency changes to the enforcement of the productivity element.^[30] 

 

 

                The Agency argues that the award’s requirement that the Agency cease strict weekly enforcement of the productivity element until bargaining is complete conflicts with 5 C.F.R. § 432.104’s mandate that the Agency address unacceptable performance “[a]t any time”^[31] during the appraisal cycle.^[32] Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any arguments that could have been, but were not, presented to the arbitrator.^[33] The Agency acknowledges that, at arbitration, the Union asked the Arbitrator to direct the Agency to enforce the productivity element less frequently than every week.^[34] Therefore, the Agency could have argued to the Arbitrator that less frequent enforcement of the productivity element would conflict with § 432.104. But there is no evidence that the Agency did so. Accordingly, §§ 2425.4(c) and 2429.5 bar the Agency’s argument, and we dismiss the Agency’s exception that contains that argument.^[35]

 

 

                The Agency argues that the Arbitrator erroneously concluded that the Agency changed its enforcement of the productivity element based on the nonfact that the Agency had previously enforced productivity on a quarterly – rather than weekly – basis.^[36] As relevant here, under § 7122(a)(2) of the Statute, the Authority reviews whether arbitration awards are deficient based on “grounds similar to those applied by [f]ederal courts in private[-]sector labor-management relations.”^[37] Federal courts – including the U.S. Supreme Court – generally refuse to disturb arbitrators’ factual findings,^[38] and will set aside an award for alleged factual errors only “where the ‘fact’ underlying an arbitrator’s decision is concededly a [nonfact].”^[39] Thus, to establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[40] 

 

                And the Authority will not find an award deficient on the basis of an arbitrator’s determination of any factual matter that the parties disputed at arbitration.^[41] In this regard, the Supreme Court has advised:

 

Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts     . . . that they have agreed to accept. Courts thus do not sit to hear claims of factual . . . error by an arbitrator as an appellate court does in reviewing decisions of lower courts. To resolve disputes . . . , an arbitrator must find facts[,] and a court may not reject those findings simply because it disagrees with them.^[42] 

 

Accordingly, “improvident, even silly, factfinding” is insufficient to establish the deficiency of an arbitration award.^[43] Rather, only “clear misstatements of undisputed historical fact” qualify as grounds for overturning an arbitration award.^[44] 

 

To support its nonfact exception, the Agency asserts that “weekly review of credits ha[s] been in place” since the Agency instituted the productivity element.^[45] If the Arbitrator had understood that fact, the Agency argues, she would not have characterized the implementation of the original chart as “quarterly review”^[46] and erroneously concluded that the Agency’s implementation of the new chart was a “new practice.”^[47]

 

In order to address the Agency’s argument, it is necessary to recognize the distinction between “review” (or tracking) of attorneys’ productivity performance and “enforcement” of credit goals.^[48] The Arbitrator found that “[t]he Agency has consistently tracked attorneys’ productivity requirements on a weekly basis.”^[49] And, in her award, the Arbitrator described the operation of the original chart, including its use of “weekly goal[s].”^[50] Thus, the Arbitrator clearly understood that, even before the alleged change at issue here, the Agency reviewed attorneys’ productivity on a weekly basis.

 

But the Arbitrator found that the Agency changed how frequently it enforced the productivity element, and that is what is relevant to the Arbitrator’s conclusion that the Agency changed attorneys’ conditions of employment. At arbitration, the Union argued that “strict weekly enforcement” of the productivity element was a “new management practice,”^[51] whereas the Agency argued that it had “consistently . . . enforced” attorneys’ productivity goals on a weekly basis prior to implementation of the new chart,^[52] and that the new chart was “merely a tool for management personnel.”^[53] The Arbitrator resolved the parties’ dispute by rejecting the Agency’s arguments, and finding that strict weekly enforcement of the productivity element using the new chart constituted a change.^[54] Thus, the Agency’s argument challenges a matter that was disputed at arbitration, and – consistent with the deference that we owe the Arbitrator’s factual findings because the parties jointly chose her, not us, to make those findings – the exception provides no basis for us to set aside the award as based on a nonfact.^[55]

 

 

According to the Agency, when the Arbitrator directed the Agency to return to the status quo ante and implement the original chart, “she effectively changed the performance standard . . . to require only 148 credits . . . per year” because she “erroneously accepted the Union’s position” that, under the original chart, an attorney had “permission” to end the year with only 95% of the annual quota.^[56] The Agency also states that the Arbitrator “up[held] the standard[] requiring 156 credits.”^[57] Thus, the Agency argues that the award is “internally contradictory so as to make implementation impossible” because it directs the Agency to adopt two contradictory performance standards.^[58]

 

The Authority will set aside an award that is “incomplete, ambiguous, or contradictory”^[59] where an appealing party demonstrates that the award is “impossible to implement because the meaning and effect of the award are too unclear or uncertain.”^[60] Here, the Agency argues that the award is contradictory because it imposes two different annual quotas.^[61] But the Agency’s argument misinterprets the award. The Arbitrator clearly found that the implementation of the new chart did not increase the annual quota.^[62] Thus, the Arbitrator’s remedy directing the Agency to reinstate the original chart until bargaining is complete does not decrease the quota. And nothing in the Arbitrator’s findings supports the Agency’s assertion that the Arbitrator interpreted the original chart to permit an attorney to end the year with only 148 credits.^[63] Because the award does not direct the Agency to adopt two contradictory performance standards, the Agency does not demonstrate that the award is impossible to implement. Accordingly, we deny this exception.^[64]

 

 

                The Agency claims that the award is contrary to public policy. For an award to be found deficient on this basis, the asserted public policy must be “explicit,” “well defined,” and “dominant,”^[65] and a violation of the policy “must be clearly shown.”^[66] In addition, the appealing party must identify the policy “‘by reference to the laws and legal precedents and not from general considerations of supposed public interests.’”^[67] 

 

The Agency argues that the Arbitrator’s “diminution of the [annual quota] to 148 . . . credits per year” is “against public policy” because it impairs the Agency’s ability to serve its mission.^[68] However, as discussed above, the award does not reduce the annual quota to 148 credits. Therefore, even assuming that the asserted public policy is sufficiently “explicit,”         “well-defined,” and “dominant,”^[69] the Agency has not “clearly shown” that the award violates that policy.^[70] Accordingly, we deny this exception.^[71]

 

 

                The Agency argues that the award is contrary to § 7106(a) of the Statute because the Arbitrator’s remedy “violates management rights by specifying the substantive content of a performance standard.”^[72] Where, as here, a grievance under § 7121 of the Statute involves an alleged ULP, the arbitrator must apply the same standards and burdens that would be applied by an administrative law judge in a ULP proceeding under § 7118 of the Statute.^[73] In this regard, the Authority has held that “an arbitrator is empowered to fashion the same remedies in the arbitration of a grievance alleging the commission of [a ULP] as those authorized under          [§] 7118 of the Statute.”^[74] In addition, the Authority has held that § 7106(a) “‘limits the scope of bargaining[,] rather than limiting the . . . ability to issue remedial orders’ under § 7118 of the Statute.”^[75] Consistent with this principle, the Authority has held that management’s right to change employees’ conditions of employment does not provide a basis for denying a status quo ante remedy for a ULP.^[76] 

 

                Consistent with this precedent, the Agency’s argument that the award conflicts with its § 7106(a) rights by specifying the content of a performance standard does not provide a basis for finding that the Arbitrator erred in awarding status quo ante relief.^[77] Moreover, the decisions cited by the Agency^[78] do not support a contrary conclusion, because none of them addresses an arbitrator’s authority to award status quo ante relief to remedy a ULP. In particular, although the Agency cites NFFE, Local 858^[79] and Newark Air Force Station,^[80] its reliance on those decisions is misplaced. Those decisions involved alleged violations of 5 U.S.C. § 4302,^[81] which is not at issue here.

                In sum, because § 7106 does not limit an arbitrator’s ability to issue remedies for ULPs, the Agency’s argument provides no basis for finding that the Arbitrator erred in awarding status quo ante relief and directing impact-and-implementation bargaining to remedy the Agency’s ULP.^[82] 

 

                To the extent that the Agency is arguing that the Arbitrator’s finding of a contractual violation cannot support her remedies, the Authority has held that where an arbitrator has based an award on separate and independent grounds, an excepting party must establish that all of the grounds are deficient in order to show that the award is deficient.^[83] In those circumstances, if the excepting party does not allege and demonstrate that one of the separate and independent grounds for the award is deficient, then it is unnecessary for the Authority to resolve exceptions concerning the other separate and independent grounds.^[84] Here, because the Arbitrator’s finding of a ULP provides a separate and independent ground for her remedies, it is unnecessary to resolve whether her finding of a contractual violation also supports those remedies. Accordingly, we find it unnecessary to resolve the Agency’s argument.^[85]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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