FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL NO. 534,
Union,
FMCS No. 12-52695
and Union Grievance

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Employer.
______________________________________________/

OPINION OF THE ARBITRATOR

February 23, 2013

After a Hearing Held December 5, 2012 at

The Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, GA 30303

For the Union: For the Employer:

Raymond S. Gregory, President Robin B. Allen

AFGE Local 534 Associate Regional Counsel
Box 11 Environmental Protection Agency
61 Forsyth Street, SW 61 Forsyth Street, SW
Atlanta, GA 30303-8960 Atlanta, GA 30303-8960
 I. The Current Collective Bargaining Agreement

The Collective Bargaining Agreement between U.S. Environmental Protection

Agency (“Employer” or “Agency”) and The American Federation of Government

Employees (“AFGE” or “Union”) became effective August 1, 2007 (“JX 1” or

“CBA”). The CBA is not a model of drafting precision. The main body consists of 96

numbered pages, to which is appended a Memorandum of Understanding signed in

May of 2007, setting the CBA’s effective date as August 1, 2007. Article 34 on pages

70-74 is entitled Reduction in Force and Transfer of Function.

Following the back cover sheet to the main body of the CBA is a numbered 28-

page Supplement entitled U.S. EPA-AFGE Master Collective Bargaining Agreement,

Article 34, Employee Performance Evaluation (“Supplement”). Supplement @ 28. The

CBA concludes with Appendix A, which is entitled Article 34, Employee Performance

Evaluation, Master Collective Bargaining Agreement (“Appendix”), and consists of 8

pages of forms and instructions for evaluating employee performance. These final

pages are numbered on every other page, beginning with page 2. See JX 1.

The Introduction to the Supplement provides in pertinent part:

The Agency-wide performance management system is PARS; Performance

Appraisal and Recognition System. …

PARS supersedes the current performance management system set forth in EPA
Order 3151.1 and the Master Agreement.

Supplement @ 3. Unless otherwise expressly indicated, henceforth Chapter 34 will

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mean the Supplement.

II. Provisions of PARS from the 2007 Collective Bargaining Agreement

The pertinent provisions of PARS are the following; portions within quotation

marks are direct quotes:

Section 4.W: “Rating of Record: The performance rating prepared at the end of the
appraisal period for performance over the entire period and the assignment of a
summary level. This constitutes the official rating of record as defined in 5 CFR Part
430.” This case concerns employees’ ratings of record, sometimes referred to as
“summary ratings” or “summary level ratings”.

Section 6: The appraisal period or performance evaluation year was 1/1−12/31 for
calendar 2007; 1/1−9/30 for 2008; and 10/1−9/30 thereafter. October−September is the
federal government’s fiscal year (“FY”). FY 2010 was 10/1/09−9/30/10; FY 2011 was
10/1/10−9/30/11, FY 2012 was 10/1/11−9/30/12, and FY 2013 is 10/1/12−9/30/13.

Section 8: Employees are rated on the critical elements of their jobs. Ratings may be
“(O) Outstanding, (E) Exceeds Expectations, (FS) Fully Successful, (MS) Minimally
Satisfactory and (U) Unacceptable.”

Section 15.E: “Performance appraisals (ratings of record) are scheduled to be done

annually within one month after the close of the appraisal period.” There are a few
exceptions not relevant here.

Section 15.G: “The rating process requires the supervisor to assess the employee’s
actual performance accomplishments against the standards contained in the approved
Performance Plan. The supervisor will review the standard(s) established for each
performance element to determine whether or not the employee met the standard(s).”

Section 20. Sources of Appraisal Input:

A: “Written performance standards and sources of appraisal input will be applied

in a consistent manner in determining the rating of each assigned element. The
supervisor will ensure that feedback (input) used in the appraisal process are related
to the employee's assigned elements and standards. The feedback used will be
factual and relevant.
"

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B: “If the information may adversely affect the employee's rating, the employee
will be made aware of the information in order to facilitate her or his ability to
respond and to correct inaccurate information. The sources of such information
will be annotated in the performance evaluation.

C: “Supervisors will not withhold pertinent and objective information necessary to

the appraisal of the employee's performance. In the interest of full and fair
communication, supervisors will communicate areas of improvement, performance
issues and other potential negative feedback as soon as practicable.”

Section 21: “Employees are encouraged to provide their supervisor with a written self-
assessment (e.g., list of accomplishments completed) at the end of the appraisal period
and/or at other times throughout the year. After considering the employee’s self-
assessment and other appraisal input against the assigned standards, the supervisor will
assign a rating to each performance element.”

Section 23.D: Once the applicable performance elements have been rated, the
supervisor will assign a summary rating of O, EE, FS, MS or U. The summary rating is
the employee’s overall rating for the appraisal period.

Section 23.E: If the summary rating is O, EE or FS, “the supervisor must sign and date
the form to approve the rating of record.”

Section 23.F: Summary ratings of MS or U require a higher level of review and

approval.

Section 25.A: “Upon approval of the rating of record, the supervisor meets with the
employee to conduct a formal appraisal discussion.” …

Section 25.B: … “Any rating which has a summary rating of Minimally Satisfactory or
Unacceptable must be approved by the second level supervisor before the proposed
rating of record is discussed with the employee. There is no requirement for a second
level supervisor to approve a summary rating of Outstanding, Exceeds Expectations or
Fully Successful.”

Other sections will be referenced as needed.

III. Region IV’s Pre-Existing Performance Appraisal Process

At the time the CBA became effective on August 1, 2007, Agency employees in

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its Region IV, which covers Alabama, Florida, Georgia, Kentucky, Mississippi, North

Carolina, South Carolina, Tennessee and 6 Tribes (“Region IV”), were not represented

by the Union. Not until August 13, 2009, did the Federal Labor Relations Authority

certify the Union as the representative of “All professional employees employed by the

U.S. Environmental Protection Agency, Region IV”. JX 2, Certification for Inclusion

in Existing Unit.

When Region IV joined the Union in 2009, regional management already had in

place its own performance appraisal process that it had implemented in late 2005, in

response to Agency-wide changes. Ax A-C. The Agency switched from a Two Tier,

Pass/Fail performance evaluation system to the Five Tier system previously described,

O, EE, FS, MS and U. The changes are explained as follows in Ax C, Region 4 U. S.

Environmental Protection Agency CY-05 Performance Appraisal Process & CY-06

Performance Management Action Plan, dated November 2005:

… The General Accounting Office and Office of Management and Budget

concluded that Pass/Fail Systems did not adequately differentiate between levels
of performance nor did it enhance effective feedback methodologies for
employees. The EPA moved to a Five Tier System converting to PARS in
July/August 2005. Each Region 4 employee has migrated over to the PARS.
Each employee requires a Rating of Record in December 2005. Additionally,
new standards must be set by 31 January 2006.

Ax C @ 5.1

It is clear that the CY-05 performance appraisal process described in Ax C was

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The Agency notes that its performance appraisal process was “negotiated with the only union certified to represent
employees in the Region at that time.” Agency Brief @ 7. That fact is immaterial to this case.

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top-down in the sense that proposed employee appraisals (i.e., ratings) were drafted at

a relatively high level, as shown in the following timeline:

➢ Section Chiefs, in consultation with Branch Chiefs, will prepare proposed

appraisals. Completed by January 6, 2006

➢ Division Directors will review all proposed performance appraisals. January 9 ˗

12, 2006

➢ Division Panel will review all proposed performance appraisals above and
below fully successful for distribution parity, justifications, equity, etc. January
13, 2006

➢ EMT [Executive Management Team] will review all proposed performance

appraisals above and below fully successful level. After review, appraisals are
deemed final. Divisions report back to line managers to conduct final
performance discussions. January 17 ˗ 20, 2006

➢ All line managers conduct reviews with employees. January 20 ˗ 31, 2006

➢ Region certifies to Headquarters that all CY 05 appraisals have been completed.

February 2006

Ax C @ 2.

Two undated Agency memoranda and another dated September 6, 2012—only

3 months before the arbitration hearing—from the Assistant Regional Administrator to

Division/Office Directors, seem to indicate that a top-down approach to performance

appraisals continued after Region IV joined the Union, as all contain the following

paragraph:

Guidance to your supervisors and managers should also include your

expectations for consultation with you to discuss the proposed ratings before
meeting with employees. As in previous years, each Division/Office Director
will be accountable for reviewing proposed ratings to ensure consistency and

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 equity before submitting proposed rating distributions for review and discussion
at the Regional level. … No performance rating discussions with employees
should occur before completion of the review process at the Division/Office and
Regional levels.

Ax E (FY 2009), Ax F (FY 2010), Ax I (FY 2012); emphasis supplied. The summary

of these Agency exhibits begins with a similarly suggestive bullet point:

− All supervisors/managers should be preparing to complete 2009 (2010)

(2012) ratings and performance discussions. Preparation should include
discussion of proposed ratings with the Division/Office Director and at the
regional level before discussion with the employee.

Employee rating continued to be a group project. Agency Brief @ 7 (“This procedure

has continued annually from 2005 to the present date.”).

The Performance Appraisal and Recognition System (PARS) Timeline Fiscal

Year Cycle for 2011 is even more suggestive of a top-down approach:

August Performance Management Training/Guidance

August 9 PARS Rating and New Performance Plan Guidance Memo #1
August 9 Supervisors Request Employees to Prepare Report of Accomplishments and
Updated Draft IDP to be Submitted Within 2 Weeks
August 17 & 18 Managing Conduct and Performance Issues for Supervisors
August 20 Branch Level Leadership Discussions of Proposed Ratings Completed
August 27 Branch Level Proposed Ratings Submitted to Division Director
September 2 Division/Office Senior Leadership Review/Discussions Completed
September 3 Division Level Self-Review for Consistency and Support for Proposed Ratings
Completed
September 9- Division Proposed Ratings Submitted to Regional Administrator’s Office
September 23 Regional Administrator’s/EMT Review Completed and Communicated to
Divisions
September 30 Division/Office Level Follow-up/Action Completed as Indicated by
Regional Administrator/EMT Level Review
October 3 Supervisors Begin PARS Discussions with Employees
October 3 PARS Rating and New Performance Plan Guidance Memo #2

Ax G @ 3, excerpt; bold in original. In a paragraph of the Agency’s brief discussing

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Ax A-I, the Agency states, “It is evident from review of these memoranda that

procedures involving the preparation and completion of proposed ratings have

undergone minimal change since implementation in 2005.” Agency Brief @ 6-7.

IV. The Positions of the Parties

IV.A. No Written Grievance

This case is unusual in that no written grievance was introduced at the

arbitration hearing. The parties seem to agree that the dispute began in August of 2011,

when the Union received a copy of an email about the PARS program for FY 2011.

Ax G. The president of Local 534 approached Agency officials with concerns about

the use of proposed ratings in Region IV and, after the parties were unable to resolve

their differences, the Union filed a grievance on September 2, 2011. The grievance

went unresolved and, on December 27, 2011, the Union requested arbitration. A

hearing was held in Atlanta, Georgia, on December 5, 2012. A transcript (“Tr”) was

made, and briefs have been filed.

IV.B. The Union’s Position

The Union’s position is outlined in its brief:

A. The Proposed Rating System is Not a Past Practice

a. The Proposed Rating System was never negotiated with the Union.
b. Local 534 has never and can never "acquiesce" to the Proposed Rating
System.
c. The Proposed Rating System was null and void on certification of
Local 534.

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 B. The Proposed Rating System allows for interference with the duty of a
supervisor to fairly rate the performance of their staff.

a. Management levels above the supervisor level in Region 4 have

unfairly interfered / required supervisors to change the performance
rating of their staff.
b. Managers require supervisors to rewrite the evaluations of staff to
retaliate against some or enhance the performance determinations for
favored staff.

C. The Proposed Rating System as implemented by Region 4 violations [sic]

USC Title 5 430.208(c) by implementing quotas.

Union Brief @ 2.

IV.C. The Agency’s Position

According to Article 39, Section 7 of the CBA, if the parties are unable to agree

upon the issues, each party is supposed to present its statement of issues to the

arbitrator, who then will determine them. The Agency proposes 4 issues:

1. Whether EPA Region 4's proposed ratings practice meets the standard of
past practice?

2. If the standard of past practice is not met, does the proposed ratings practice
violate Article 34 of the Master Collective Bargaining Agreement (MCBA)?

3. Does the proposed ratings practice violate 5 CFR § 430.208(c)?

4. If the proposed rating practice does not meet the standard of past practice
and violates provisions of the MCBA and/or 5 CFR 430.208(c), what shall
the remedy be?

Agency Brief @ 1. The arbitrator adopts the Agency’s statement of issues. The

Agency would have the arbitrator answer the questions 1-3 in favor of a past practice

and compliance with Chapter 34 and the regulation so as to moot the fourth.

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 V. The Burdens of Proof

The Union concedes that it has the burden of proof. That is, of course, the

general rule in a non-disciplinary arbitration. However, in this case, the Agency

defends in part on the doctrine of past practice. With respect to that issue, the rule is as

follows:

For a past practice to constitute an implied term of the contract, “strong proof”
of its existence is required. The party alleging the existence of a past practice
bears the burden of proving its existence. The recognized criteria are that the
practice must be “unequivocal, clearly enunciated, and acted upon over a
reasonable period of time.

Elkouri & Elkouri, How Arbitration Works, (7th ed 2012 ABA/BNA) @ 12-5;

footnotes omitted. See also IBEW Local 2356 and Okonite Co, 01-2 ARB ¶ 3830,

2001 WL 36366974 (Arb 2001).

VI. The Issue of Past Practice

The Agency notes that, by the time the Union filed its grievance in September

of 2011, Region IV’s use of proposed ratings had been in effect for 6 years. Moreover,

the Union waited 2 years to act. The Union claims that it first became aware of the

proposed ratings practice in August of 2011, a claim that seems implausible. Union

Brief @ 3. While it may be true that the Union was not involved until August of 2009,

surely many of its members were employed by the Agency in prior years, when the

practice was in place. The Union states that officers of Local 534 were not elected until

November of 2009, but that does not explain why the Union could not have filed a

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grievance during the PARS period of 2010. There really is no clear explanation for the

Union’s delay.

However, delay alone cannot establish a past practice. The Agency describes the

elements of a past practice as follows:

The Federal Labor Relations Authority recognizes that parties may establish
terms and conditions of employment through past practice or other tacit or
implied agreement. Air Force Academy, 65 FLRA 756 (2011). In order for a
condition of employment to be established through past practice, there must be a
showing that the practice “has been consistently exercised over a significant
period of time and followed by both parties, or followed by one party and not
challenged by the other.” Ibid, citing Social Security Admin, 60 FLRA 549, 554
(2005); see Homeland Security, 59 FLRA 910, 914 (2004). Essential factors in
finding that a past practice exists are that the practice must be known to
management, responsible management must knowingly acquiesce in the
practice, and the practice must continue for a significant period of time. Health,
Educ and Welfare, 4 FLRA 736 (1980).

Agency Brief @ 6; citations corrected and abbreviated.

In arguing for a past practice, the Agency emphasizes the 6-year period between

Region IV’s institution of proposed ratings and the Union’s grievance. That, however,

is unfair to the Union, inasmuch as it was not involved with Region IV until the

summer of 2009 and its officers were not elected until November of that year, after

PARS ratings for FY 2009 had been completed. Ax E. A past practice must be proved

in the context of a labor-management relationship. Here, there was none until 2009.

The proposed appraisals to establish ratings of record are used only toward the

end of a rating year and the beginning of the next; i.e., they are not used continuously

throughout the year. Thus, the Union reasonably can be charged only with missing the

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opportunity to object to the use of proposed ratings in FY 2010. It did object the very

next fiscal year.

The cases proffered by the Agency in support of a past practice do not support a

finding of one in this case. Air Force Academy (from early 1990s until January 2007,

“for several years at least” held sufficient to establish past practice); Social Security

Admin (“continuous use … for almost two and a half years” held past practice);

Homeland Security (too few instances of alleged practice); Health, Edu and Welfare

(facts so different that case not relevant); Cruz-Martinez v Homeland Security, 410 F3d

1366 (Fed Cir 2005) (practice continued 16-17 years).

Other than pointing to the Union’s delay in grieving the use of proposed ratings,

the Agency did not provide evidence of acquiescence by the Union. When asked if the

Union had ever agreed to the use of proposed ratings, the Agency’s Human Resources

Specialist and liaison with the Union, who testified and attended the entire hearing on

behalf of the Agency, stated that he did not know of the Union agreeing to the use of

proposed ratings. Tr, Vol I @ 26-27. The Union insists that it could not agree because

the CBA was negotiated at the national level and Local 534 has no authority to vary it.

Union Brief @ 6. As noted in the Elkouri treatise, “strong proof” is required to

establish a past practice, and the Agency’s evidence is just not strong enough. The

Agency failed to prove a past practice.

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 VII. Region IV’s Performance Appraisal Process vs. the CBA

VII.A. The Language of the Collective Bargaining Agreement

The parties are in agreement that nothing in the CBA expressly authorizes

Region IV’s use of proposed ratings. The Agency argues that the CBA should not be

read to prohibit their use. Agency Brief @ 8-11. In so doing, the Agency specifically

points to Sections 23.E and 25.B from Article 34, the relevant portions of which are set

out in Part II above. The arbitrator does not interpret them the way the Agency does.

To explain the arbitrator’s interpretation, the principal steps in the rating process are

outlined below:

Section 4.W: The rating of record is to be prepared at the end of the appraisal period.

Section 15.E: Ratings of record are scheduled to be done “within one month after the

close of the appraisal period.” The arbitrator interprets the quoted phrase to mean by

the end of October immediately following the end of a fiscal year on September 30.

Section 21: After considering the employee’s self-assessment, if any, and other

appraisal input against the assigned standards, the supervisor assigns a rating to each

performance element. Under Section 20, there is no limit to useful input, other than

any information used must be “factual and relevant”. See also Section 4.K.

Section 23.D: After the supervisor has rated the performance elements, the supervisor

assigns a rating of record.

Section 23.E: If the rating of record is O, EE or FS, “the supervisor must sign and date

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the form to approve the rating of record.”

Section 23.F: Ratings of record of MS or U require a higher level of review and

approval.

Section 25.B: Any rating of MS or U must be approved by the second level

supervisor. “There is no requirement for a second level supervisor to approve a

summary rating of Outstanding, Exceeds Expectations or Fully Successful.” The

Agency may be correct that the quoted sentence could be interpreted in isolation as not

forbidding higher level approval of O, EE or FS ratings. Agency Brief @ 9-10.

However, the arbitrator interprets it as clarifying and confirming a supervisor’s

authority under Sections 23.D and E to assign and approve ratings of O, EE and FS

with finality; i.e., what the supervisor says in those cases goes. Cf. Agency Brief @ 3

(“after the EMT reviewed proposed ratings, they were deemed final”). Therefore, the

arbitrator finds a conflict between provisions of the CBA and Region IV’s

performance appraisal process in which proposed ratings of O, EE and FS are

reviewed by higher management before final approval.

VII.B. Subtle Pressure on Supervisors

For the arbitrator, the most difficult aspect of this case is addressing the

Agency’s argument that, notwithstanding Region IV’s extensive review of proposed

O, EE and FS ratings by high-level management, no supervisor is under any pressure

to change those proposed ratings. Agency Brief @ 9, 10, 11. Although the Agency

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presented testimony to that effect, the arbitrator came away from the hearing

wondering how the multi-level review process could be effective if there were no

pressure. Reading the Agency’s brief did nothing to allay his concern.

Consider the descriptions of the review process and its purpose found in that

brief:

“Region 4’s development of procedures to assure consistent and equitable

application of rating criteria for all its employees” Agency Brief @ 2.

“the importance of enforcing universal application of equitable criteria … and

policy developed to attain this goal” Id.

“a PARS divisional review panel to ensure equitable application of rating

criteria” Id. @ 3.

“to ensure consistency in application of equitable rating criteria” Id. @ 4.

“to ensure standards were equitably and consistently applied” Id. @ 7.

“ensuring proper application of rating standards and criteria” Id. @ 11.

See also occurrences in Transcript Word Index, Vol I: assure [3], ensure [14], ensured

[1], ensuring [1]; Vol II: ensure [22], ensuring [2].

The definitions of words used by the Agency to describe Region IV’s process

and its purpose, all of which are taken from www.dictionary.com, are most revealing:

assure—to promise; guarantee: to make (an event) certain; ensure.

ensure—to secure or guarantee: to make sure or certain.

enforce—to put or keep in force; compel obedience to: to obtain (payment,

obedience, etc.) by force or compulsion: to impose (a course of action) upon a
person.

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To the arbitrator, it does not seem possible that Region IV’s stated purpose for using

proposed ratings could be achieved absent some type of workplace pressure on

supervisors.

There was some evidence of pressure. The Agency itself recites one such

incident over proposed ratings for 2012:

[The Environmental Information Manager for the Information Access Station]

testified that the Branch Chief informed her that her ratings were out of
alignment with those in other branches. Consequently, he asked her to review
the ratings. [She] testified that she reviewed the ratings and determined that the
evaluation of one employee should be elevated, while the evaluations of the
other employees should remain as initially assessed. In the last meeting with the
Branch Chief, [she] testified that [the Branch Chief] wrote out on a piece of
paper the ratings he thought each employee should receive. [She] disagreed with
[the Branch Chief’s] assessment and expressed her disagreement. Ultimately,
[she] approved the ratings that she proposed for each employee.

Agency Brief @ 11 n 4. Such pressure as must exist would tend to undermine a

supervisor’s independent judgment that the arbitrator finds a supervisor has under the

PARS Supplement. In the instance just recited, the pressure backfired.

VIII. The Implications of 5 CFR § 430.208(c)

There is no solid evidence of quotas prohibited by 5 CFR § 430.208(c), which is

cited by both parties. About the only thing said on the subject was the following short

exchange with the Assistant Regional Administrator in the Office of Policy and

Management:

Q: So again, you equate the fairness and the consistency in the numbers,
basically, always falling in the same bell curve, for lack of a better word?

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 A: Yeah. Yeah. Yeah.

Tr, Vol I @ 111. Such evidence hardly establishes the existence of quotas.

The arbitrator has seen cases in which a review panel sought to achieve an

“equitable” distribution of performance awards. In NTEU Chapter 276 and FDIC, 05-

2 ARB ¶ 3247, 2005 WL 6767556, 106 FLRR-2 22 (Arb 2005), the award program

called for one-third of employees to be recognized and provided for high-level review

to ensure that the cap was observed. However, a first-level review panel undertook to

distribute awards widely, in violation of program rules. A grievance was filed by an

employee who did not receive an award, allegedly as a result of the first-level panel’s

actions. The employee was awarded reconsideration.

In the instant case, there was evidence of statistical analyses of ratings. Ux 6, Ax

J. In fact, the PARS Supplement calls for statistical information to be given to the

Union:

By no later than 120 calendar days from the close of the performance appraisal
period, management shall make available to the AFGE Counci1 238, summary
information concerning the ratings of record issued to the bargaining unit
represented by AFGE Council 238. The following information shall be provided
and made available in Excel format, without personal identifiers: organization
code (ORG CODE); organization description (e.g., Immediate Office, Regional
Administrator, etc.); Pay Plan/Series/Grade (PP-SERS-GRD); geographical
location (GEOLOC); bargaining unit code; PARS rating; and a key for the data
fields.

Chapter 34, Section 22. The big difference between the Union’s use of statistical data

and the Region’s is that the Region analyzes data about proposed ratings, whereas the

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Union receives data about ratings of record. Ax E, F, I (“submitting proposed rating

distributions for review and discussion at the Regional level”). As previously

discussed, the use of proposed ratings threatens the independence of supervisors.

Nothing, however, prevents management review and statistical analysis of

employee ratings of record. Indeed, 5 CFR § 430.208(c) itself permits such activity, so

long as it is not used for deriving and assigning summary levels:

The method for deriving and assigning a summary level may not limit or require
the use of particular summary levels (i.e., establish a forced distribution of
summary levels). However, methods used to make distinctions among
employees or groups of employees such as comparing, categorizing, and
ranking employees or groups on the basis of their performance may be used for
purposes other than assigning a summary level including, but not limited to,
award determinations and promotion decisions.

PARS ratings may affect employee compensation and hence the Agency’s budget, and

it would be anomalous if a federal agency could not track such expenditures. See

Section 15.K.

IX. The Union’s Request for Relief

The Union asks for the following relief:

Local 534 seeks the immediate end to Region 4's implementation of their
Proposed Rating System used in conjunction with the MCBA's Article 34
PARS. The end of communications between first line supervisors and their
managers concerning the rating given staff except for those ratings of
Unacceptable or Minimally Satisfactory. An end to upper management review
and modification of performance assessments for staff as written by supervisors.
A strict adherence to the schedule for PARS contained in the MCBA.
Interpretation of the MCBA by the definitions contained therein, if not defined
in the MCBA by applicable law or regulation or as defined in their dictionary
meaning (Webster's Unabridged). The defining of the a [sic] supervisor as the

18
 first level of supervisor for an employee.

Union Brief @ 13.

Although the Union is entitled to an end of the Agency’s use of proposed

ratings, prohibiting all communication between supervisors who are in the process of

rating employees and higher level management would be unreasonable. A supervisor

may be new and in need of guidance, unusual events may have occurred during the

rating period, English may not be the supervisor’s native language or the supervisor

may not be a good writer and may need suggestions with wording. There are any

number of valid reasons why a supervisor may need guidance in rating employees.

However, nothing here should be construed as allowing the Agency to pressure

supervisors into seeking input from higher levels.

In general, the PARS Supplement is difficult to decipher. Some of the main

problems of interpretation stem from uses of the terms “supervisor”, “the supervisor”,

“the immediate supervisor”, “the supervisor(s)”, “the supervisor of record”, “the

second level supervisor”, “the employee’s supervisor”, and “manager”. Such terms are

not always used with precision.

The difficulty begins with the expansive definition of supervisor in Section 9:

Supervisors, by position, are responsible for preparing and reviewing performance

plans, performance ratings, award nominations, and performance related personnel
actions. A supervisor is an individual employed by the agency having authority in
the interest of agency to hire, direct, assign, promote, reward, transfer, furlough,
layoff, recall, suspend, discipline, or remove employees, to adjust their grievances,
or to effectively recommend such action if the exercise of the authority is not

19
 merely routine or clerical in nature but requires the consistent exercise of
independent judgment, except that, with respect to any unit which includes
firefighters or nurses, the term supervisor includes only those individuals who
devote a preponderance of their employment time to exercising such authority. The
Agency acknowledges its responsibilities and obligations under 5 CFR Part 410
and 5 CFR 430.

Although supervisors “are responsible for preparing and reviewing … performance

ratings”, the remainder of the paragraph does not appear to be limited to any particular

level of supervisor.

The PARS Supplement was negotiated by the EPA and AFGE Council 238 prior to

the time Region IV came into the fold. For reasons that are unclear, the negotiating parties

back in 2007 chose to use phrases such as those listed above without specifying the

precise meanings of those and other descriptive phrases. The parties chose to use such

phrases in some places in the Supplement but not in others, so the arbitrator must presume

that their choices were deliberate and thus must be respected. If the arbitrator were to

insert “first level” where the negotiating parties chose not to, he would be rewriting the

contract in violation of Article 39, Section 5 (“The arbitrator shall have no authority to

alter in any way the terms and conditions of this Agreement”). The arbitrator is without

authority to define “supervisor” as “first level supervisor” as the Union requests.

IX. The Award

The Agency must stop using proposed ratings and the performance appraisal

process currently in force in Region IV and instead adhere to the provisions of the

PARS Supplement, Chapter 34 of the CBA. However, after all ratings of record for an

20
appraisal period have been completed in accordance with PARS, nothing in this award

is intended to prevent the Agency from analyzing and using those ratings in any way

that promotes the efficiency of the federal service.

Supervisors and managers whose ratings seem unjustified may be questioned

about them and given additional training in preparing ratings. They even may be

judged on their ability to prepare sound ratings. Cf. Article 34, Preamble, ¶ 4

(“Performance management is an inherent and significant element of supervision.”).

The Agency may prepare model ratings or, with the permission of the affected

employees, make available examples of actual employee ratings which are deemed

exemplary. See Appendix.

The purpose of this Opinion and Award is not to tell EPA Region IV how to

manage it affairs, but only to halt practices that the arbitrator finds to be inconsistent

with the CBA. Nor is there any intention to criticize Region IV’s performance

appraisal process which was developed with the best of intentions, well before the

Region became bound by the CBA. Without the CBA, it would be a perfectly

reasonable process.

Dated February 23, 2013 ________________________________

E. Frank Cornelius, PhD, JD, Arbitrator

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