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57 FLRA No. 195
UNITED STATES INFORMATION AGENCY
BROADCASTING BOARD OF GOVERNORS
WASHINGTON, D.C.
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1812
(Union)
0-AR-3435
_____
DECISION
July 10, 2002
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Leroy D. Clark filed by the Agency under §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 exception.
Following remand from the Authority, United States Information Agency, Broadcasting Board of Governors, Washington, D.C., 57 FLRA 261 (2001) (Information Agency), the Arbitrator clarified his previous award and found that while the Agency could charge the grievant with misconduct under 5 U.S.C. Chapter 75, in these circumstances it committed a prohibited personnel practice by charging the grievant with misconduct "based solely on performance that is governed by and meets the critical elements set forth for the employee's position." Award at 5. Accordingly, he again reversed the Agency's five day suspension. For the following reasons, we deny the Agency's exception.
II. Background
A. Initial Arbitrator's Award
The grievant, a Russian language broadcaster, on two occasions during live broadcasts, made on-air comments concerning co-workers. The grievant's supervisor told her that the on-air comments were inappropriate and that such comments undermined the credibility of the Agency with its audience. The Agency initially proposed suspending the grievant for ten days pursuant to Chapter 75 based on the two comments. The Agency later reduced the proposed suspension to five days. Initial Award at 4. The grievant subsequently sought arbitration.
The Arbitrator framed the issue as follows:
Did the Agency have authority to suspend the grievant for five days based on two inappropriate on-air comments? If not, what is the remedy?
Initial Award at 1.
In his initial award, the Arbitrator determined that the Agency, in taking action against the grievant, wrongfully used the procedures of Chapter 75. Specifically, the Arbitrator determined that the subject matter of the discipline related to the grievant's performance under standards pertaining to making on-air fluffs and "consistently [leading] out reports and [providing] an appropriate transition to the next piece of material." Initial Award at 4, 11. Applying Lovshin v. Dept. of the Navy, 767 F.2d 826 (Fed. Cir. 1985) (Lovshin), the Arbitrator concluded that the discipline solely concerned the grievant's performance and should have been processed under 5 U.S.C. §§ 4301, et seq (Chapter 43), rather than under Chapter 75. Therefore, the Arbitrator reversed the suspension, finding that it constituted a prohibited personnel practice. He also awarded backpay and retained jurisdiction to hear any request for attorney fees.
B. Arbitrator's Award Following Remand
The Authority remanded the initial award, noting that the Agency could proceed under Chapter 75 and that the Authority was unsure of the exact basis upon which the Arbitrator found that the Agency engaged in a prohibited personnel practice. On remand, the Arbitrator clarified that the Agency had committed a prohibited personnel practice by charging the grievant under 5 U.S.C. Chapter 75, for misconduct that was "based solely on performance that is governed by and meets the critical elements set forth for the employee's position." Award at 5. The Arbitrator clarified his initial award and stated that while the Agency could proceed under Chapter 75, it committed a prohibited personnel practice in that the Agency essentially charged the grievant with making two on-air fluffs. [n1]
The Arbitrator noted that the grievant's critical performance elements require the grievant to keep on-the-air fluffs to a minimum and consistently lead out reports and provide an appropriate transition to the next piece of material. Id. at 5. The Arbitrator found that the [ v57 p928 ] grievant was rated "Highly Successful" with respect to these critical elements and that the Agency never mentioned either inappropriate comment in the grievant's performance appraisal. Id. at 6-7. Accordingly, the Arbitrator determined that because the Agency solely disciplined the grievant for performance that is "governed by and meets the critical elements set forth for the employee's position," the Agency committed a prohibited personnel practice by improperly circumventing Chapter 43. Id. at 4-7, (citing Lovshin, 767 F.2d at 842).
III. Positions of the Parties
A. Agency's Exception
The Agency argues that the Arbitrator again incorrectly applied Chapter 75. The Agency contends that the employee engaged in misconduct, rather than matters covered by the grievant's work plan, and that this alone is sufficient to justify its use of Chapter 75. Exception at 8 (citing Coyle v. Dep't of the Treasury, 62 M.S.P.R. 241 (1994) (Coyle)); Hernandez v. Dep't of Agriculture, 83 M.S.P.R. 371 (1999) (Hernandez). Accordingly, the Agency contends that the Arbitrator's reliance on Lovshin is erroneous. Id.
The Agency also asserts that the Arbitrator misapplied Lovshin by omitting from consideration that part of Lovshin that states, "[a]n agency may not circumvent Chapter 43 by charging that an employee should have performed better than the standards communicated to him in accordance with Chapter 43." Exception at 9 (quoting Lovshin, 767 F.2d at 842 (emphasis in the original)) and (citing Fairall v. Veterans Admin., 33 M.S.P.R. 33 (1987) aff'd 844 F.2d 775 (Fed. Cir. 1987)). In this respect, the Agency argues that even if its charge is considered a performance based action under Chapter 75, rather than misconduct, it never held the grievant to a higher standard than communicated to her under the performance standards established under Chapter 43. Exception at 9. The Agency supports this contention by further arguing that the grievant's comments were derogatory and amounted to more than mere fluffs, which it defines as "generally" entailing only "mispronunciations" or "stumbling over words." Id. at 10. As such, it argues that the Arbitrator's award is "contrary to the controlling Federal Circuit and Board decisions." Id.
Moreover, the Agency argues that because the Arbitrator improperly applied Lovshin, there was no requirement that it give the grievant notice of a performance deficiency, as required by Chapter 43, but not Chapter 75. Accordingly, the Agency states that the award was "incorrect as a matter of law, rule or regulation and should be reversed and the Agency's action should be sustained." Id. at 11.
B. Union's Opposition
The Union contends that the Agency does not have absolute discretion in deciding whether to proceed with employee discipline for performance reasons under Chapter 75. It cautions that, as the Arbitrator determined, it is a prohibited personnel practice for the Agency to take disciplinary action against the grievant under Chapter 75 based solely "on performance conduct that was governed by and met the critical requirements of her position." Opposition at 8 (citing Lovshin, 767 F.2d at 842). It contends that the Arbitrator's factual findings support a conclusion that the Agency engaged in this prohibited personnel practice. Opposition at 9. Moreover, the Union argues that both Coyle and Hernandez, are distinguishable in that the present matter rests solely on the grievant's performance of a critical element. Id. at 14-16.
IV. Analysis and Conclusions
When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).
Under Lovshin, as cited by the Arbitrator, it is a prohibited personnel practice for an agency to bring a disciplinary charge under Chapter 75 based solely on performance that is governed by and meets critical elements set forth for an employee's position. Lovshin, 767 F.2d at 842. In addressing this issue, the MSPB has noted that the applicability of Lovshin may be resolved by reviewing an agency's charge in light of the critical element at issue and the employee's performance standards for that element. See, e.g., Madison v. Defense Logistics Agency, 48 M.S.P.R. 234, 238 (1991). Pursuant to this analysis, the Arbitrator determined that the [ v57 p929 ] grievant's two on-air comments essentially amounted to on-air fluffs that were governed by the critical element of her performance standards, and complied with that critical element in terms of frequency. [n2] The Arbitrator further determined that the Agency failed to show that the grievant violated an Agency policy, or that there was any additional allegation of misconduct or poor performance in the Agency's charge. Award at 6. The Arbitrator therefore determined that the Agency impermissibly circumvented Chapter 43 by charging the grievant solely for failing to perform better than required by the grievant's performance standards.
The Agency argues that the Arbitrator's decision to find the comments merely fluffs is "contrary to the controlling Federal Circuit and Board decisions," because the comments were derogatory and could hurt the Agency's credibility with its audience. Exception at 10. However, the Agency has not demonstrated any reason we should not defer to the Arbitrator's determination that based on the record, the comments amounted to mere fluffs, and has not challenged this determination as either contrary to any specific law or deficient for any other reason. The Agency's contention amounts to a bare assertion and is denied. See, e.g., United States Dep't of Defense, Education Activity, Arlington, Va., 56 FLRA 901, 905 (2000).
Next, the Agency claims that the Arbitrator erroneously applied Lovshin because this matter concerns misconduct under Chapter 75 and not performance. However, the Arbitrator concluded that the conduct in question related solely to the grievant's ability to limit her on-air fluffs under a critical element in her performance standards, and that there was no additional charge of misconduct such as violating an Agency policy. Based on these factual determinations, to which we defer, we find that contrary to the Agency's argument this matter does concern performance.
Finally, the Agency argues that even if its charge is considered a performance based action under Chapter 75, rather than misconduct, it never held the grievant to a higher standard than communicated to her under the performance standards established under Chapter 43. Exception at 9. However, as stated in our initial decision, under Lovshin, where an Agency charges an employee under Chapter 75 based solely on performance that is governed by and meets critical elements set forth for the employee's position, the Agency commits a prohibited personnel practice. Information Agency, 57 FLRA at 263 n.*. In light of the critical element at issue here, and the employee's performance standards for that element, the Arbitrator determined that the grievant's performance met the applicable critical element because she has kept her on-the-air fluffs to a minimum. Moreover, the grievant's receipt of a "highly successful" rating on this element of her performance standards supports the Arbitrator's conclusion. [n3] Accordingly, the Agency has not shown that the Arbitrator erred in determining that the Agency committed a prohibited personnel practice under Lovshin.
V. Decision
The Agency's exception is denied.
Footnote # 1 for 57 FLRA No. 195
While the Agency specifically charged the grievant with making "inappropriate" comments, it is clear from reviewing the Arbitrator's award that he found in resolving the issue that to the extent the comments were inappropriate, they were analogous only to "fluffs," and as such did not constitute misconduct but related instead to performance.
Footnote # 2 for 57 FLRA No. 195
The Arbitrator, after reviewing the Agency's charge in light of the grievant's performance standards, found that despite the Agency's assertion to the contrary, the charge was based on performance, not misconduct. See Initial Award at 10.
Footnote # 3 for 57 FLRA No. 195
The Agency argues that Lovshin is not applicable to this matter because it did not charge the grievant with failing to perform better than the standards communicated to her under Chapter 43. Exception at 9. However, based upon the facts and conclusions of the Arbitrator, it is clear that the Agency, by charging the grievant with misconduct that turned out to be based solely on conduct that met her critical performance standards, did in fact seek to discipline the grievant for failing to perform better than the standards communicated to her pursuant to Chapter 43. As such, contrary to the Agency's assertion, the Arbitrator's conclusion is consistent with the standard expressed in Lovshin.