No one on the union side of the table should ever argue that it is easy to evaluate employee performance.  It is not.  But at the same time, AFGE just showed that OPM, a wholly-owned subsidiary of OMB, makes it far harder than it need be. (This post first appeared in December 2012 and is reproduced with minor edits here. It also happens to be our 800th posting over almost six years.  Enjoy the 4th if we do not blog before then.)

Federal law requires that critical element performance standards, “to the maximum extent feasible,” permit “the accurate appraisal of performance based on objective criteria, and . . . are reasonable, realistic, attainable, and clearly stated in writing.”  (5 USC 4302(b)(1))  That sounds glorious—almost spiritual, and those guarantees convinced Congress in 1978 to make it easier to fire federal employees when they failed to meet such reasonable, objective, clear, blah, blah, blah standards. However, as virtually every union rep knows, agencies rarely write performance standards that way and neither OMB nor OPM does a thing to force agencies to comply with the law.

In the face of such wall-to-wall managerial low-balling, AFGE’s Department of Labor Bureau of Labor Statistics folks asked an arbitrator to rule on whether the BLS performance standards comply with the law.  (AFGE, 67 FLRA 67 (2012))  The Agency (BLS) collects, analyzes, and disseminates economic information. The incumbents of the affected positions collect data through surveys of businesses that enable BLS to prepare various statistical economic indexes.  A high survey response rate is necessary to produce reliable and accurate statistics.  Responding to the surveys is voluntary, that is, the Agency has no statutory or regulatory authority to compel businesses to respond to the surveys.

One of the critical elements in the performance plans for each of the affected positions deals with maximizing survey responses (the refusal-rate element). The element measures employee performance relative to regional average response rates. The Union filed an institutional grievance claiming that the refusal-rate element violates 5 U.S.C. § 4302; 5 C.F.R. part 430; Chapter 430 of the Department Personnel Regulations, Subchapter 1 (DPR Chapter 430); and Articles 5, 15, and 43 of the CBA.  AFGE’s requested remedies were that the Agency remove the refusal-rate element from employee performance plans and review and reissue ratings of record for each affected employee for the applicable performance periods.  The parties could not resolve their dispute and submitted it to arbitration with the stipulated issue being whether the affected positions’ refusal-rate element for the 2009 and 2010 performance periods violated law, regulation, or the CBA.

The Arbitrator concluded it did violates § 4302(b)(1) and Article 43, finding that the affected employees were not rated on “any objective criteria [that] are reasonable, realistic[,] and attainable.”  He also held that the Agency does not rate employees on the effort they put into obtaining voluntary cooperation from businesses to participate in the survey process, but instead rates them only on results. In this connection, he said that the employees’ success is defined not by “uniform and objective standards,” but rather by “the luck of the draw as to the assignment by the supervisor, the mood of the respondent business[,] or the deceptive guile of the employee” to “cajole the respondent to participate in the survey.”

The Neutral found that the Agency also violated § 4302(b)(1) by failing to communicate to employees performance standards that are “sufficiently specific to provide . . . a firm benchmark toward which to aim” performance.  In support, he noted Agency-witness testimony acknowledging that the initial refusal-rate benchmark is an “approximat[ion],” and that the regional average is “a moving target” throughout the performance year.

In addition, the Arbitrator found that the Agency failed to comply with § 4302(b)(2)’s requirement that it clearly communicate in advance to employees the performance standards and critical elements of their positions.  In sum, the Arbitrator found that the refusal-rate element does “not comply with [§ 4302], applicable regulations[,] and the parties’ [CBA].”

As a remedy, he ordered the Agency to remove the refusal-rate element from the affected employees’ performance plans, and directed the Agency not to penalize those employees for failing to meet the element’s requirements.  Additionally, the Agency must review and reissue, where appropriate, a rating of record for affected employees on their remaining elements for the 2009 and 2010 performance periods.

When the agency filed exceptions with FLRA, it dismissed them and upheld the arbitration award with the following words:

The Arbitrator found that, instead, the employees’ success is defined by “the luck of the draw” as to the assignment, the “mood” of the respondent businesses, or the “deceptive guile of the employee” to “cajole” the respondents to participate in the survey, and not by “uniform and objective standards.” Id. at 11. These determinations – essentially that, under the refusal-rate element, the Agency measures the unpredictable behavior of third parties, not employees’ performance of their duties – are factual findings. As noted above, the Authority defers to an arbitrator’s underlying factual findings, unless the appealing party establishes that those factual findings are deficient as nonfacts. See FAA, 63 FLRA at 504. The Agency does not challenge the Arbitrator’s findings as nonfacts. Moreover, the Agency neither demonstrates that the Arbitrator’s award conflicts with the plain wording of § 4302(b)(1) nor cites any authority that would support such a conclusion. We therefore deny the Agency’s contrary-to-law exception regarding the Arbitrator’s finding that the refusal‑rate element violates the objective criteria requirement of § 4302(b)(1).

As for the Agency’s exception challenging the arbitrator’s finding of a regulatory violation, the FLRA had this to say,

Part 430 of title 5 of the Code of Federal Regulations supplements and implements chapter 43 of title 5 of the U.S. Code. 5 C.F.R. § 430.101. Accordingly, § 430.203 is an extension of § 4302(b)(1). Id. That regulation defines the term “performance standard,” as used in § 4302(b)(1), as a “management‑approved expression of the performance threshold(s), requirement(s), or expectation(s) that must be met to be appraised at a particular level of performance. 5 C.F.R. § 430.203.  A performance standard may include, but is not limited to, quality, quantity, timeliness, and manner of performance.” Id. The regulation defines a “critical element” as “a work assignment . . . of such importance that unacceptable performance on the element would result in a determination that an employee’s overall performance is unacceptable.” Id. Neither of these regulatory definitions changes § 4302(b)(1)’s explicit requirement that performance standards be based on objective criteria. 5 U.S.C. § 4302(b)(1). Thus, as we have already found that the Agency has failed to show that the Arbitrator erred in finding that the refusal‑rate element violates the objective‑criteria requirement of § 4302(b)(1), we find that the Agency has likewise failed to show that the award is deficient based on § 430.203.

FEDSMILL recommends you read the entire arbitration decision, which the National Council of Field Labor Locals has posted on its web site.  See Margolin. We further recommend that unions begin examining the non-negotiable performance standards that management has dumped on employees to see whether the union can follow the AFGE strategy in this case.  If a case appears possible, the union generally can file an institutional grievance on behalf of all employees to 1- prohibit further use of the standard, 2- force the reevaluation of employees recently evaluated against the standard, 3- trigger the deletion of any recent scores in that element from the current overall rating calculation, 4- require recalculation of any cash awards based on annual appraisal scores, and 5- order recalculation of any promotion scores based on recent appraisals along with priority consideration or other remedies, if appropriate, etc.

If agencies cannot comply with the requirements of 5 USC 4302—and OPM does not care if they ever do, then they should not be permitted to fire employees based on only substantial evidence.  They have the option to use adverse action procedures, but only if they can meet the higher evidentiary standard of the preponderance of evidence.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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