[ v21 p74 ]
21:0074(15)AR
The decision of the Authority follows:
21 FLRA No. 15
BUREAU OF PRISONS,
DEPARTMENT OF JUSTICE
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 148
Union
Case No. 0-AR-701
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Robert H. Mount filed by the Agency under section 7122(a) of
the Federal Sector Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
A grievance was filed and submitted to arbitration claiming that
under the established performance standards, the grievant's performance
level with respect to all four of his job elements should have been
rated "outstanding" rather than "exceeds." The Arbitrator observed that
the established standards for the performance levels of "minimally
satisfactory," "fully successful," and "exceeds" for each of the job
elements of the grievant's position are stated in quantitative terms.
The Arbitrator specifically noted, for example, that for the element
pertaining to patient care, the standard for "exceeds" provides that
there shall be no more than one instance during the rating period when
the incumbent failed to provide adequate medical care. The Arbitrator
further observed that although there is no definition in the four job
elements for the standard of "outstanding," management by regulation
defines outstanding performance as "performance which clearly
demonstrates a level of achievement which exceeds to an exceptional
degree the established standards." The Arbitrator noted in this respect
that it is proper to have no definition of "outstanding" in the
performance standards because the use of the term "established
standards" in the regulatory definition relates to the standards set for
performance below the level of "outstanding." Thus, in accordance with
the definition of outstanding performance set by management, the
Arbitrator questioned whether the grievant's level of performance
exceeded the established standards to an exceptional degree. With
respect to the grievant's level of performance, the Arbitrator rejected
the Activity's arguments that the grievant's level of performance was
lower than as described and appraised in his performance appraisal
because of disciplinary actions not described in the appraisal that were
taken against the grievant over performance-related matters. The
Arbitrator ruled that the performance of the grievant that must be
evaluated under the established standards is the grievant's performance
as specifically described and appraised in the grievant's formal annual
performance appraisal. With respect to the posed question of what level
of performance exceeded to an exceptional degree the established
standards, the Arbitrator reiterated that the established standards were
solely quantitative. Thus, the Arbitrator ruled that it would be
arbitrary and capricious in such circumstances to evaluate what
constituted outstanding performance in other than quantitative terms,
and he consequently again rejected consideration of disciplinary actions
against the grievant. Because the grievant's performance as
specifically described and appraised in his performance appraisal was
quantitatively perfect in three of his job elements, the Arbitrator
determined in accordance with the definition of outstanding performance
that the grievant was entitled under the established standards to a
rating of "outstanding" as to those three elements. As his award the
Arbitrator therefore ordered that the disputed annual appraisal be
changed accordingly and that the grievant be granted any recognition
that is normal for those so appraised.
III. FIRST EXCEPTION
A. Contentions
In its first exception the Agency contends that the award is contrary
to section 7106(a)(2)(A) and (B) of the Statute. Specifically, the
Agency argues that by a substitution of judgment of the Arbitrator for
that of management in the establishment of performance standards, the
award is contrary to management's right to direct employees and to
assign work.
B. Analysis and Conclusions
The Authority has consistently held that proposals which
substantively restrict management in its identification of critical
elements of a position and establishment of performance standards are
inconsistent with section 7106(a)(2)(A) and (B) of the Statute as
improper interferences with management's right to direct employees and
to assign work. E.g., National Treasury Employees Union and Department
of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub
nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982); American Federation
of Government Employees, AFL-CIO, Local 1968 and Department of
Transportation, Saint Lawrence Seaway Development Corporation, Massena,
New York, 5 FLRA 70 (1981) (Proposals 1-2), aff'd sub nom. AFGE, Local
1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926
(1983). Similarly, the Authority has held that proposals which would,
as their sole effect, subject management's determinations concerning the
identification of critical elements and the content of performance
standards to the grievance procedure and arbitral review constituted
improper interference with management's rights. E.g., Saint Lawrence
Seaway Development Corporation, 5 FLRA 70 (Proposal 4). In so holding,
the Authority has noted that subjecting managerial evaluations
concerning critical elements and performance standards to arbitral
review would require an arbitrator to substitute his or her judgment as
to how the agency should be run for that of management. National
Treasury Employees Union and Department of Health and Human Services,
Region 10, 13 FLRA 732, 734 (1982), aff'd sub nom. NTEU v. FLRA, 767
F.2d 1315 (9th Cir. 1985). "Under the Statute, however, management has
the right to evaluate the relative importance of job tasks and to
formulate levels of achievement for those tasks based upon its own
determination of the agency's operating needs, goals, and priorities."
Id.
With respect to the arbitrator's role in resolving grievances
involving performance appraisal matters, consistent with the above
holdings and section 7106(a)(2)(A) and (B) of the Statute, an arbitrator
could not determine that a grievance directly challenging an agency's
identification of job elements or establishment of performance standards
is grievable and arbitrable. Nor could an arbitrator render an award
substituting his or her judgment concerning the identification of
critical job elements and establishment of performance standards for
that of management. E.g., Bureau of Engraving and Printing, U.S.
Department of the Treasury and Washington Plate Printers Union, Local
No. 2, IPDEU, AFL-CIO, 20 FLRA No. 39 (1985).
It is equally well established, on the other hand, that there is a
duty to bargain under section 7106(b)(3) on appropriate arrangements for
employees adversely affected by management's exercise of its authority
under section 7106(a), e.g., actions which adversely affect employees
taken under the performance standards established by management. E.g.,
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 3 FLRA 784, 791-92
(1980) (Proposal 5). Thus, in the facts of that case, the Authority
specifically found that the proposal in dispute merely established a
general, nonquantitative requirement by which the application of
critical elements and performance standards established by management
may subsequently be evaluated in a grievance by an employee who believes
that he or she has been adversely affected by the application of
management's performance standard to him or her. To that extent, the
Authority held that the proposal was within the duty to bargain. Under
such a proposal the Authority noted that an employee against whom
management takes disciplinary action for unacceptable performance may,
in a grievance of such action pursuant to section 7121(e) of the
Statute, raise the issue of whether the performance standards as applied
to him or her meet the contractual requirements, i.e., the arbitrator of
such a grievance would simply determine if the standard established by
management as applied to the grievant complied with the "fair and
equitable . . . " requirements of the parties' agreement. In finding
that proposal to be within the duty to bargain, the Authority
specifically noted that such an arrangement did not affect management's
discretion to determine the content of performance standards nor did it
authorize an arbitrator to substitute his or her judgment for that of
management as to the content of the standards.
The Authority has distinguished between proposed grievance procedures
subjecting management's identification of critical elements and
establishment of performance standards to arbitral review and grievance
procedures relating only to the application of such elements and
standards to an individual employee through the appraisal process.
Saint Lawrence Seaway Development Corporation, 5 FLRA 70 (Proposal 4).
As has been noted, the Authority found in that case that a proposed
procedure which provided for grievances directly challenging the
identification of critical elements and the establishment of the
performance standards conflicted with management's rights. In contrast,
however, the Authority citing AFGE Local 32, also ruled that a proposed
extension of the grievance procedure to any action taken as a result of
the application of performance standards to an employee appropriately
would extend the negotiated grievance procedure to matters relating to
the adverse affect on an employee of the exercise by management of its
authority under section 7106 of the Statute. In ruling that the
application of management's elements and standards to an employee in the
context of a performance appraisal is grievable, the Authority has
consistently emphasized, as in the AFGE Local 32 case discussed above,
that such a grievance would not relate to the establishment of the
standards, because the review by an arbitrator would not preclude
management from determining the content of the elements and standards
and would not result in the setting of new elements and standards.
Instead, arbitral review would simply and appropriately determine
whether the application of the elements and standards to the employee
through a performance appraisal complied with applicable law,
regulation, and the parties' collective bargaining agreement. See,
e.g., American Federation of Government Employees, AFL-CIO, Local 3804
and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7
FLRA 217 (1981) (Proposal 7).
Consistent with the above holdings and the Statute, an arbitrator may
resolve a grievance by an employee who believes that he or she has been
adversely affected by management's application of performance standards
in a performance appraisal to that particular employee. In judging
management's application of standards and elements to a grievant, an
arbitrator may determine that, in the circumstances of the case,
management has not applied the elements and standards which it had
established to a grievant or has applied those, or other elements and
standards, in violation of law, regulation, or an appropriate
agreed-upon general, nonquantitative review criterion. In such
circumstances, an arbitrator could, for example, sustain an employee's
grievance alleging that management had not applied the elements and
standards which it had established or had applied those, or other
elements and standards, in violation of law, regulation, or an
appropriate agreed-upon general, nonquantitative review criterion. In
sustaining the grievance the arbitrator as a remedy could direct that
the grievant's work product be granted the rating to which entitled
under the standards and elements established by management or be
reevaluated by management utilizing those standards and elements.
Bureau of Engraving and Printing, 20 FLRA No. 39; Social Security
Administration and American Federation of Government Employees, SSA,
Local 1923, AFL-CIO, 7 FLRA 544 (1982). However, in resolving such a
grievance, an arbitrator may not, of course, substitute his or her
judgment for that of the agency as to the appropriateness of elements
and standards established by management. Further, an arbitrator may not
conduct an independent evaluation of an employee's performance under the
elements and standards established by management and substitute his or
her judgment as to what should be that employee's performance evaluation
and rating. Bureau of Engraving and Printing.
In terms of this case, as has been noted, the Arbitrator, in
resolving the grievance claiming that under management's established
performance standards, the grievant's performance should have been rated
higher, expressly examined the performance standards established by
management and the regulatory definition of outstanding performance; he
specifically evaluated the application of the standards established by
management to the grievant's performance as described in his performance
appraisal prepared by management; and as his award he determined in
accordance with the definition of outstanding performance and
management's own appraisal of the grievant's performance that the
grievant was entitled under the established standards to a rating of
"outstanding" as to three of his job elements. Thus, contrary to the
Agency's contention that the award improperly interferes with
management's right to establish performance standards, the Authority
finds that consistent with management's rights under section
7106(a)(2)(A) and (B) and consistent with the Authority precedent
described above, the award has simply and appropriately applied to the
grievant the performance standards established by management. In this
respect, contrary to the argument of the Agency, the Authority likewise
finds that consistent with FDIC, Chicago, 7 FLRA 217, which identified
the performance appraisal as constituting the application of
management's performance standards to an employee, the Arbitrator
properly limited his review of the grievant's performance to that which
was specifically described and appraised in the grievant's formal annual
performance appraisal. Furthermore, the Authority similar to its
decision in Social Security Administration, 7 FLRA 544, finds that the
Arbitrator appropriately applied the established standards to the
grievant's performance described in his appraisal based on the
Arbitrator's determination that with the established standards stated
solely in quantitative terms, it would be arbitrary and capricious for
outstanding performance to be characterized in other than quantitative
terms which precluded management's consideration of disciplinary
actions. In short, the grievance and the award properly relate only to
the application of management's performance standards to the grievant.
The award does not relate to the establishment by management of those
standards: it has not affected management's discretion to determine the
content of the standards, it has not resulted in the substitution of
judgment by the Arbitrator for that of management as to the content of
the standards or the appraisal of the grievant's performance, and it has
not resulted in the setting of new standards. Accordingly, no basis is
provided for finding the award deficient as contrary to the Statute.
IV. SECOND EXCEPTION
A. Contentions
In its second exception the Agency contends that the award is
contrary to 5 U.S.C. Section 4302. Specifically, the Agency argues that
the award bars the use of a nonquantitative performance standard hich is
expressly permitted by section 4302.
B. Analysis and Conclusions
The Authority finds that the award in no manner bars management from
establishing a nonquantitative performance standard in accordance with
section 4302. As has been noted, the Arbitrator in his award simply
determined that with the standards that management had established
stated solely in quantitative terms, it would be arbitrary and
capricious for outstanding performance, which management had defined as
that which exceeded to an exceptional degree the established standards,
to be characterized in other than quantitative terms. Consequently,
this exception provides no basis for finding the award deficient as
alleged by the Agency.
V. THIRD EXCEPTION
A. Contentions
In its third exception the Agency contends that the award fails to
draw its essence from the parties' collective bargaining agreement. In
support the Agency argues that the award has no basis in the parties'
collective bargaining agreement.
B. Analysis and Conclusions
The Authority concludes that this exception constitutes nothing more
than disagreement with the Arbitrator's findings of fact and his
reasoning and conclusions and that consequently this exception provides
no basis for finding the award deficient. See, e.g., Federal
Correctional Institution, Petersburg, Virginia and American Federation
of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108
(1983).
VI. FOURTH EXCEPTION
A. Contentions
In its fourth exception the Agency contends that the award is based
on nonfacts because it is premised on two mistaken findings of fact. In
support the Agency contends that the Arbitrator mistakenly evaluated the
grievance on the basis of the grievant's performance as stated in his
performance appraisal and mistakenly extrapolated in an arithmetic
progression the established performance standard for "outstanding."
B. Analysis and Conclusions
As determined in the resolution of the first exception and contrary
to the contention of the Agency, the Arbitrator properly took into
account the performance of the grievant as stated in his performance
appraisal, and consequently the contention of the Agency in this respect
provides no basis for finding the award deficient. The remaining
contention of the Agency constitutes nothing more than disagreement with
the Arbitrator's findings of fact and his reasoning and conclusions and
likewise provides no basis for finding the award deficient on the ground
that the central fact underlying the award is concededly erroneous and
in effect is a gross mistake of fact but for which a different result
would have been reached. See, e.g., General Services Administration and
American Federation of Government Employees, Council 236, 15 FLRA 328
(1984).
VII. DECISION
For the reasons stated above, the Agency's exceptions accordingly are
denied.
Issued, Washington, D.C., March 14, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY