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32 FLRA No. 53

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

INTERNAL REVENUE SERVICE
INDIANAPOLIS DISTRICT
Agency

and 

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 49

Union

Case No. 0-AR-1469

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Patrick A. McDonald filed by the Agency and 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 Union also filed an opposition to the Agency's exceptions.

The grievant alleged that she had received an unfair performance appraisal for 1986 because of her activities as a Union steward. The Arbitrator found that the Agency did not violate section 7116(a)(1) and (2) of the Statute when it prepared the grievant's performance appraisal, but he ruled that the Agency's action violated the parties' collective bargaining agreement. As a remedy, the Arbitrator ordered the Agency to reevaluate the grievant, taking into account her case work evaluation, individual performance folder records, her rebuttal memoranda, and a reviewer report dated August 1, 1986. The Arbitrator stated that the new performance appraisal should not result in any job element rating being lower than that in a reappraisal of September 5, 1986.

The Authority has recently reexamined and modified its case law concerning the remedial authority of arbitrators in performance appraisal grievances. See Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988). Consistent with these recent changes in case law, we conclude that the case should be remanded to the parties for resubmission to the Arbitrator to determine if under existing case law, the appropriate remedy is to order the Agency to reevaluate her.

II. Background

In November 1985, the grievant became a Special Compliance Officer (SCO) after having been a Revenue Officer. She was due for an annual performance evaluation on December 28, 1985. However, because she was subject to new performance standards for her new position, her supervisor did not evaluate her until June 1986. That appraisal covered only the 6-month period during which the grievant was an SCO. The grievant received one 4 ("Exceeds Fully Successful") and seven 3's ("Fully Successful") as her ratings on the eight job elements for the SCO position.

The 6-month evaluation was lower than the grievant's previous evaluations. The grievant filed a grievance alleging that: (1) the evaluation was improper because it was made in reprisal for her activities as a Union steward, a position which she assumed in October 1985; and (2) she did not receive a fair and objective evaluation as required by the collective bargaining agreement.

At step 3 of the grievance procedure, the Agency decided that the grievant should have been evaluated for a full year and directed the supervisor to reevaluate her performance. The reevaluation was prepared on September 5, 1986, and covered the period July 17, 1985 through July 17, 1986. In the reevaluation, the supervisor applied the performance standards for the Revenue Officer and SCO positions and gave the grievant six 4's and three 3's.

The higher rating on reevaluation did not resolve the grievance and the matter was submitted to arbitration.

III. Arbitrator's Award

The parties stipulated the issues before the Arbitrator to be: (1) whether the Agency violated section 7116(a)(1) and (2) of the Statute by discriminating against the grievant in preparing her 1986 appraisal; (2) whether the Agency violated the collective bargaining agreement in preparing the 1986 appraisal; and (3) what remedy, if any, is available to the grievant.

As to the first issue, the Arbitrator found that there was insufficient evidence to show that the Agency had discriminated against the grievant because of her activity as a Union steward. He ruled that the Agency had not violated section 7116(a)(1) and (2) of the Statute and he dismissed this portion of the grievance.

The Arbitrator stated that he reviewed the evidence and testimony concerning instances in which the grievant and a vice president of the Union met with the grievant's supervisor to discuss labor-management matters in their respective advocate roles. He stated that his review of those instances showed nothing that would indicate "an unusually loud, boisterous, bitter, or vitriolic setting." Award at 14. He stated that both the grievant and the supervisor "appeared to be doing their jobs in adequately representing two opposing points of views." Id. He found that those instances alone were not sufficient to demonstrate any anti-union animus by the supervisor.

The Arbitrator also considered an incident in which the Union vice president alleged that he and a branch chief in another division disagreed over a memorandum circulated by the vice president. The Arbitrator found that there was insufficient evidence to show that the branch chief used his chain of command through the grievant's supervisor to retaliate against the Union and the grievant. Award at 14-15. The Arbitrator stated that "[w]hile the [U]nion has the right to rely upon circumstantial evidence, insufficient evidence has been admitted to prove a violation in this case. A series of speculations and assumptions would have to be engaged in by this Arbitrator for me to conclude that incident caused a violation of 5 USC 7116(a)(1) and (2)." Award at 15. In sum, the Arbitrator concluded that there was insufficient evidence to demonstrate that the supervisor discriminated against the grievant because of her union activity to indicate a violation of the Statute.

As to the second issue, the Arbitrator found that the supervisor violated the collective bargaining agreement by misapplying applicable performance standards in evaluating the grievant. The Arbitrator noted that the grievant was commended by her supervisor for her performance on a large collection case, which was her principal duty during the first 6-month appraisal period. He also found that the grievant's supervisor failed to counsel the grievant about any alleged decline in her performance, as required by the agreement. The Arbitrator found that when the supervisor reevaluated the grievant for a l-year period, he failed to consider favorable reports on the grievant's performance made by previous supervisors.

The Arbitrator stated that he disagreed with Authority decisions which restricted the remedial powers of arbitrators in performance appraisal cases. However, he stated that "until they are changed, modified, or reversed, I will attempt to follow the limitations set forth in those cases as it pertains to remedial powers." Award at 19. As a remedy for the breach of the agreement, the Arbitrator ordered the Agency to reevaluate the grievant, taking into account her case work evaluation, individual performance folder records, her rebuttal memoranda, and a reviewer report dated August 1, 1986. The Arbitrator stated that because of the evidence and the Agency's misapplication of the standards, the new performance appraisal should not result in any job element rating being lower than that in the appraisal of September 5, 1986.

IV. Exception Relating to the Alleged Unfair Labor Practice

A. Contentions

The Union contends that the Arbitrator erroneously imposed a higher burden of proof than that required by law to establish that the Agency discriminated against the grievant because of her union activities. According to the Union, the Arbitrator improperly demanded direct evidence of management hostility toward the grievant's protected activity and required proof of express management statements linking the grievant's protected activity and the prohibited management activity.

The Union maintains that it established a prima facie violation of the Statute because the grievant received a lower performance appraisal at the same time that she performed protected union activities and there was no legitimate rationale for lowering the performance appraisal. In support of its position the Union cites 22nd Combat Support Group (SAC), March Air Force Base, California, 27 FLRA 279 (1987).

The Agency did not file an opposition to this exception.

B. Discussion

We disagree with the Union's contention that the Arbitrator imposed an improper burden on the Union to demonstrate that the Agency violated the Statute. The Union's reliance on 22nd Combat Support Group is misplaced. In that case, the unfair labor practice complaint alleged that the respondent improperly appraised an employee's performance because she sought assistance from the union and filed a grievance. The Authority held that in order to establish a prima facie case of discrimination in violation of section 7116(a)(2) of the Statute, it must be shown that the affected employee engaged in protected activity and that the activity was a motivating factor in the agency's treatment of the employee in connection with the employee's conditions of employment. 27 FLRA at 282. The Authority ruled that not only was it proper in that case to draw an inference that the protected activity was a motivating factor in the respondent's treatment of the employee, but that the employee's protected activity was the sole motivating factor in giving her a lowered performance rating and the alleged reasons for the lowered appraisal were pretextual. Id.

In the instant case, the Arbitrator concluded that there was insufficient evidence to demonstrate that the supervisor discriminated against the grievant because of her union activity. The Arbitrator stated that while the Union could use circumstantial evidence, insufficient evidence had been admitted to prove a violation in this case. He further stated that "[a] series of speculations and assumptions would have to be engaged in by this Arbitrator for me to conclude that incident caused a violation of 5 USC 7116(a)(1) and (2)." Award at 15. The Arbitrator declined to make inferences based on the record and found that the Agency had not improperly discriminated against the grievant in violation of the Statute.

In our view, the Arbitrator's conclusion that there was insufficient evidence to show a violation of the Statute constitutes a finding by him that the grievant's protected activity was not a motivating factor in the supervisor's appraisal of the grievant and, therefore, that the Union had not established a prima facie case of discrimination under the Statute. Contrary to the Union's assertion, the Arbitrator did not require the Union to demonstrate an express management statement linking the protected activity and Agency action detrimental to an employee. Rather, as the Arbitrator properly acknowledged, the Union could use circumstantial evidence to demonstrate that a statutory violation occurred. We believe that the Arbitrator simply found that the evidence before him was insufficient to establish a prima facie case of discrimination. Accordingly, we decline to find the award deficient on the basis asserted by the Union.

V. Exceptions Relating to the Alleged Violation of the Agreement

A. Agency Contentions

The Agency contends that the Arbitrator exceeded his authority by imposing improper restrictions on the Agency in the reevaluation of the grievant. First, the Agency contends that the Arbitrator's order that the Agency "reevaluate the grievant taking into account her case work evaluation, individual performance folder records, the grievant's rebuttal memoranda, and the reviewer report dated August 1, 1986" (Award at 20-21) interferes with management's right to determine the methods to be used in evaluating employee work performance. The Agency cites Federal Prison System, U.S. Medical Center For Federal Prisoners and American Federation of Government Employees, Local 1612, 23 FLRA 372 (1986), in support of its argument.

Second, the Agency contends that by ordering that the grievant's reappraisal not result in any job element rating being lower than that contained in the September 5, 1986 rating, the Arbitrator improperly substituted his judgment for that of the Agency concerning the content of performance standards and the determination of the performance rating. The Agency maintains that by establishing "a floor for the evaluation," the Arbitrator conducted an improper independent evaluation of the grievant. Agency Exceptions at 7.

B. Union Contentions

The Union contends that the Arbitrator should have determined a proper rating for the grievant rather than ordering that she be reevaluated by the Agency. The Union also contends that the award does not infringe on management's right to establish performance standards.

The Union maintains that an arbitrator has the authority in a performance appraisal case to make an independent evaluation of a grievant just as the Merit Systems Protection Board has the power to do so in cases before it. The Union also argues that arbitrators should be given authority to fashion adequate remedies in performance appraisal cases which involve protected activity or procedural errors. Finally, the Union points out that recent decisions of the Authority, including Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, AFL-CIO, Local 987, 28 FLRA 652, 654 (1987) (Member McKee concurring in the result) and Social Security Administration, 30 FLRA 1156 (1988), remove previous restrictions imposed on the remedial authority of arbitrators. The Union maintains that arbitrators now may direct agencies to grant grievants certain ratings.

C. Discussion

In Social Security Administration, we discussed in detail the remedial authority of arbitrators in performance appraisal cases. We held that

when an arbitrator finds that management has not applied the established elements and standards or that management has applied the established elements and standards in violation of law, regulation, or a properly negotiated provision of the parties' collective bargaining agreement, the arbitrator may cancel the performance appraisal or rating. When the arbitrator is able to determine on the basis of the record presented what the rating of the grievant's work product or performance would have been under the established elements and standards, if they had been applied, or if the violation of law, regulation, or the collective bargaining agreement had not occurred, the arbitrator may direct management to grant the grievant that rating. If the record does not enable the arbitrator to determine what the grievant's rating would have been, the arbitrator should direct that the grievant's work product or performance be reevaluated by management as appropriate.

30 FLRA at 1160-61.

In the instant case, the Arbitrator issued his award before we clarified the remedial authority of arbitrators in Social Security Administration. The Arbitrator found that for the 6-month period ending in June 1986, the grievant spent the majority of her time working on one large collection case and on union steward duties. The Arbitrator also found that under Article 12, Section 4 K of the parties' collective bargaining agreement, time spent performing collateral duties and union representational functions are not to be considered in evaluation of critical elements. Award at 16. The Arbitrator stated that the grievant's supervisor should have been aware that the large collection case constituted the bulk of the grievant's work for that 6-month rating period and that the evaluation "appears to be a misapplication of the standards set forth in Section 4 of Article 12 of the National Agreement . . . ." Award at 17. The Arbitrator also found that the grievant's supervisor failed to counsel the grievant to inform her of a decrease in performance. Award at 18.

The Arbitrator stated that he would follow the limitations on the remedial authority of arbitrators contained in Authority precedent, although he disagreed with that precedent. Award at 19. Thus, based on Authority precedent at the time he made his award, the Arbitrator did not attempt to determine what the grievant's rating would have been if the standards were properly applied. However, he ordered that the grievant be reevaluated by the Agency at a level no lower than that of the September 5, 1986 reevaluation. The Arbitrator found that the supervisor could not have correctly applied the standards if he did not take into consideration the case work evaluations and individual performance records submitted on behalf of the grievant. Award at 20.

In requiring the Agency to consider specified documents and records relating to the grievant's performance when reevaluating that performance, the Arbitrator did not interfere with management's right to determine the methods to be used in evaluating employee performance. In Federal Prison System, the arbitrator's award was found deficient to the extent that it required a reevaluation solely by comparison with a sample of five appraisals selected under a precise method prescribed by the arbitrator. Id. at 374. In contrast, the Arbitrator in the case before us has only ordered the Agency to reevaluate the grievant, "taking into account" the performance-related information which he found to be essential to a proper evaluation. Award at 20. The Arbitrator did not prescribe what the standards or critical elements should be and did not exceed his authority by determining the methods to be used in conducting performance appraisals. Compare Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 26 FLRA 375, 377 (1987) (award contrary to the Statute because arbitrator ordered agency to add various requirements to existing performance evaluation policy and thereby prescribed method to be used in evaluating employee work performance).

We find that the Arbitrator's remedy ordering the Agency to reevaluate the grievant is consistent with the remedial authority of arbitrators in performance appraisal cases as established in Social Security Administration. See also Ogden Air Logistics Center and American Federation of Government Employees, Local 1592, 31 FLRA 872, 875 (1988). In this case, the Arbitrator determined, based on the evidence before him, that the grievant's rating should be no lower than that of September 5, 1986. This determination is also a permissible exercise of an arbitrator's authority under Social Security Administration because the Arbitrator determined on the record before him that the grievant's performance warranted a rating no lower than the September 5, 1986 rating. Therefore, we conclude that the Arbitrator did not exceed his authority in this respect.

It is unclear in this case whether the Arbitrator viewed the record before him to be sufficient to determine what the grievant's specific rating should have been and whether the Arbitrator would have directed the Agency to grant the grievant such a specific rating if he had not considered himself precluded from doing so by Authority precedent. Therefore, we will remand the case to the parties for resubmission to the Arbitrator to allow him to decide whether under the standards set forth in Social Security Administration and based on the evidence of record, he is able to determine what the grievant's rating should have been.

VI. Decision

The award is remanded to the parties with the direction that they resubmit the matter to the Arbitrator for a decision on appropriate remedy in light of Social Security Administration, 30 FLRA 1156, and the above discussion.

Issued, Washington, D.C.,

Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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