Arbitration – “It’s Just Not Fair”

By Barbara Haga

About a year ago I wrote about a credit card misuse case where the disciplinary action was taken to arbitration.  The arbitrator did not find that a GS-13 (with prior discipline about card use) taking ATM advances on the card when not on travel was personal use of the card and did not sustain the removal.

I thought that was a blatant example of an arbitrator applying a different standard than the MSPB on a particular kind of charge, but that was nothing compared to the performance case that I am writing about today.  This case is American Federation of Government Employees, Local 1923 and U.S. Department of Veterans Affairs (2016).  The decision came out June 10.  I hope the DVA filed an exception.

Background

The grievant was a Vocational Rehabilitation Counselor, GS-12.  She had been in her position for over ten years and had previously passed the Skills Certification Test for her position.  She worked in an “out-based” location away from where her supervisor was located.

There is a current announcement out for a job like this on USAJOBS.  It’s an opening at GS-101-9 target GS-12. The duties described include the following: 1) Provides and coordinates a wide range of rehabilitation counseling and case management services to veterans with disabilities and other eligible individuals, 2) Performs initial evaluations, makes eligibility determinations, does rehabilitation planning and problem solving, and conducts counseling, 3) Coordinates and implements rehabilitation services, completes case documentation, employment services, and administration and interpretation of vocational testing, 4) Makes recommendations and referrals to other sources, which may assist the veteran.  Clearly these are functions that veterans are in desperate need of at this time (the Bureau of Labor Statistics shows an unemployment rate for veterans this summer of 4.9%).

The qualifications requirement for the GS-9 is a master’s in rehabilitation counseling.  It appears from the current announcement that specialized experience can be gained in other Federal, state, and local rehabilitation work, but that is only substitutable for an internship requirement and doesn’t meet basic qualifications. The grievant arrived as a GS-9 employee in 2001 and was promoted to GS-12 in 2002 according to testimony of the deciding official.  The grievant admitted in her testimony that there were issues with her meeting the required standards in FY 13 and FY 12.

The PIP

The supervisor testified in the hearing that in September 2014 she found that the employee was failing three critical elements:  Quality of Work, Timeliness, and Successful Closure or Production. These elements are measured by national, number-driven standards. The standards included numbers like 88% on Fiscal Accuracy, 96% on Entitlement Determination, 83% on Accuracy of Evaluation, Planning, and Rehabilitation, etc.  I don’t know about my readers, but 83% and 88% seem generous to me – 12-17% improper payments would be okay????

The grievant provided testimony about whether the numbers were applied equitably – that sometimes there were delays in receiving course certification from a school a veteran was attending, and there were issues about computer down time.  The account of the management testimony on these points recounted in the decision is not what I would have hoped to see – that these are national averages that take into account certain problems in system availability, leave time, and problems in obtaining records, but that hundreds of counselors are able to meet these standards across the country every year.  Testimony about how they were developed, how long they had been used, etc., would have been helpful.

The PIP notice was prepared with union participation.  There was an oral meeting where failings were discussed and after the meeting, the employee and the union were asked for input.  There were two extensions to the PIP to provide time for training where the employee (a GS-12 full performance level employee) was taking training in the Vocational Rehabilitation Counselor Fundamentals. Another extension was granted at the employee’s request.  During the PIP there were bi-weekly meetings by telephone and in person.  The arbitrator wrote that “… copies of the meetings were documented and provided to her.”  I am also assuming that there were notes from each of the meetings that were given to the employee.

During the PIP the employee reached Fully Successful on two elements but remained at unacceptable on Quality of Work.  If I am following the decision correctly it seems that the PIP was issued in September 2014 and ended in March 2015, so the grievant had a six-month opportunity period.  Because she was at Unacceptable in one of her elements at the end of the PIP, she was removed from her position.

The Arbitrator’s Conclusion

The arbitrator overturned the removal.  When I read this decision this summer I nearly fainted.  Here is the highlight from Findings and Discussion: “The testimony is clear that the grievant seriously endeavored to achieve acceptable work performance and was unsuccessful in Critical Element 3 of her Performance Appraisal.  The determination of successful performance of Critical Element 3 is undisputed.  It is unclear whether the performance level was of her own making or due to a combination of attributing [sic?] factors.”

The arbitrator credited the employee’s account about delays in processing actions because of computer issues.  Management did not refute that to the arbitrator’s satisfaction.  But that was just one aspect of the unacceptable performance.   The decision goes on:

The failure of the grievant to meet standard in relation to the Quality of Work Critical Element presents similar concerns of fairness.  Particularly noteworthy is the grievant’s outcry for supervisory assistance in constructing an acceptable report.  Here again, the evidence is clear that supervision did exactly what was called for by Article 27, Section 10 in relation to identifying specific performance-related problems and deficiencies … TMS training, extending the period of the PIP and others.  Missing however is the response to her persistent request of the grievant for guidance and discussion on how to present an acceptable write-up to her supervisor.

The employee wanted samples.  Apparently, the employee asked the supervisor and other employees for samples of a properly completed report.  The supervisor told her she should be able to create that herself.  In other words, it appears she couldn’t create an acceptable report on her own and needed a go-by.

The arbitration decision addressed Douglas Factors in discussing that the employee was not responsible for delays caused by system problems. “The same kind of delay has contributed here to the grievant’s separation as though she was at fault.  An employee without fault has been penalized.  Thus, the extent or degree of any impact on Douglas Factor consideration is improper and cannot be found that the agency acted within the meaning of fairness an objectivity of Article 27.…  (It does appear that a manager testified about Douglas factors, but the arbitrator should know better.) [Editor’s Note: Douglas Factors have NO PLACE in a 432 unacceptable performance removal because the penalty cannot be mitigated. This is the second DVA case in a matter of weeks that we’ve run across in which Douglas Factors were improperly considered in an Unacceptable Performance removal under 5 CFR 432, see Walls v. DVA, DE-0752-13-0278-I-1 (September 7, 2016)(NP)(infra). Somebody needs to come to our classes, learn our business, and get the word out.]

The arbitrator ended with this:

“Despite the lack of any procedural errors in relation to the grievance [sic] performance appraisal and PIP, the grievance [sic] removal remains contractually deficient.  The Master Agreement recognizes and affords employees the right to a fair and equitable performance appraisal to the maximum extent possible.  Refusing reasonable requests of an employee assiduously endeavoring to maintain employment is hardly fair or equitable…  In the effort to be procedurally or mechanically correct in separating the grievant, management apparently lost sight of the underlying substantive purpose of a performance appraisal and the role of supervision in relation to PIP’s.”

American Federation of Government Employees, Local 1923 and U.S. Department of Veterans Affairs, 116 LRP 25915 (June 10, 2016). If I were keeping a list of names to strike…. Haga@FELTG.com