An arbitrator has reversed a performance-based removal at the Northeastern Program Center of Social Security Administration in Jamaica, New York, in a case with AFGE Local 1760. In a precedent-setting decision, he overturned the grievant’s removal, finding that the agency had used numerical performance goals in violation of the collective bargaining agreement. The arbitrator held that “the language of the agreement is clear and unambiguous in its expression of the parties’ intent to prohibit the utilization of numeric goals and/or performance levels as a basis for performance assessment.” The arbitrator also specifically found that the performance goals of an “accuracy rate of 92.2% with a productivity rate of 7.8 cases/day on the full range of Benefit Authorizer work” was “unreasonably high, and operated to the Grievant’s detriment.”
The opinion determined that the agency had failed to give the grievant a reasonable opportunity to improve his performance before he was removed. While the collective bargaining agreement stressed a positive environment, the arbitrator determined that after the grievant did not do well in his classroom training, “the Agency essentially wrote him off, creating for him not a positive but a negative performance environment.” The arbitrator was persuaded that the grievant did not receive “the close one-on-one attention attendant to the mentor/mentee relationship.” He was unconvinced that the agency provided the necessary training “as exemplified by the Agency’s denial of the grievant’s request for further classroom training … as well as what I am convinced was [his mentor’s] perfunctory communication to him.”
Thus the arbitrator concluded that: “I think that these acts, whether of commission or omission, effectively conspired to assist what I perceive as a self-fulfilling prophecy that commenced with the grievant’s ‘graduation’ from classroom training; i.e.; that there was simply no chance that he would succeed as what [his supervisor] described as ‘a very difficult position to learn.'” Given the lack of any mitigation in performance cases and the contract violations, the arbitrator sustained the grievance, stating that “The performance-based removal was not proven by substantial evidence and it was not taken in accordance with law, regulations, and collective bargaining agreement.” He therefore awarded that “The grievant shall be restored to his position of Benefit Examiner with pay retroactive to the date of termination of his employment; and shall be assigned to an experienced individual to mentor the grievant for a period not less than six nor more than twelve months.”
Edward H. Passman, counsel for AFGE Local 1760, will be filing a request for attorney fees and costs incurred as the decision indicates that an award of attorney fees is in interest of justice. This case is a good example of the advantage of being covered by a collective bargaining agreement as the union has the option of taking the employee’s case to an arbitrator rather than the Merit Systems Protection Board. There are only limited appeal rights from the arbitrator’s decision as the agency must obtain Office of Personnel Management approval to request reconsideration from the arbitrator and to ultimately appeal to the U.S. Court of Appeals for the Federal Circuit. Such an appeal is limited to cases which will have a significant impact on civil service law, rule, or regulation.
** This information is provided by the attorneys at
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