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United States Information Agency, Broadcasting Board of Governors and American Federation of Government Employees, Local 1812, 0-AR-3435, July 10, 2002, 57 FLRA No. 195.

The Authority turned down the agency's claim that the arbitrator misapplied Lovshin v. Navy, 767 F.2d 826 (Fed. Cir. 1985) (Lovshin) when, in a clarified award, he held that the agency committed a prohibited personnel practice when it charged the grievant under Chapter 75 for misconduct that was "based solely on performance that is governed by and meets the critical elements set forth for the employee's position." FLRA said that "by charging the grievant with misconduct that turned out to be based solely on conduct that met her critical performance standards, [the agency] did in fact seek to discipline the grievant for failing to perform better than the standards communicated to her pursuant to Chapter 43."

This case involved the 5-day suspension of the grievant, a Russian language broadcaster, for making inappropriate on-air comments concerning co-workers during a live broadcast. She grieved and the matter was referred to arbitration. The arbitrator determined that the agency wrongfully used the procedures of Chapter 75 in disciplining the employee, when it should have taken a Chapter 43 performance-based action. The agency filed exceptions and, in 57 FLRA No. 54, the Authority found that the arbitrator's determination that Chapter 75 procedures were not available to the agency in the circumstances of this case was inaccurate. Because FLRA was unable to determine whether the arbitrator, applying Chapter 75 procedures, would have still found the suspension improper, it remanded the case "for the Arbitrator's assessment of the Agency's actions consistent with applicable laws, rules, regulations and any pertinent contract provisions."

In a footnote the Authority noted that in Lovshin the Federal Circuit held that a Chapter 75 action may not be sustained if it is based solely on performance that is governed by and meets the critical elements of the employee's position. FLRA said that "while the Arbitrator noted this standard, he did not specify that this was the basis of his finding that the Agency engaged in a prohibited personnel practice."

In his remand decision, the arbitrator found that what the agency characterized as "improper remarks" were, in fact, "fluffs" within the meaning of the employee's critical elements. And the performance standard for that element was that the employee was to keep on-the-air fluffs to a minimum. The arbitrator further found that the grievant had been rated "Highly Successful" with respect to these critical elements and there was no mention of either of the inappropriate comments in the grievant's performance appraisal.

In the arbitrator's view, the agency had committed a prohibited personnel practice by charging the employee under 5 USC Chapter 75 for conduct that was "based solely on performance that . . . meets the critical elements[.]"

The agency filed an exception to the clarified award, claiming that the arbitrator misapplied Lovshin. It contended, among other things, that even if the charge were considered a performance-based action under Chapter 75, rather than misconduct, it never held the grievant to a higher standard than communicated to her under performance standards established under Chapter 43. It argued that the grievant's remarks were derogatory and amounted to more than mere "fluffs," which it defined as generally entailing only mispronunciations or stumbling over words.

The Authority was unpersuaded. "[T]he Agency has not demonstrated any reason why we should not defer to the Arbitrator's determination that based on the record, the comments amounted to mere fluffs, and has not challenged this determination as either contrary to any specific law or deficient for any other reason." It also rejected the agency's claim that this case concerned misconduct under Chapter 75 rather than performance. It noted that the arbitrator found that the conduct at issue related solely to the grievant's ability to limit on-air fluffs under a critical element in her performance standards. Moreover, there was no additional charge of misconduct, such as violating an Agency policy. "Based on these factual determinations, to which we defer, we find that contrary to the Agency's argument this matter does concern performance."

In a footnote it also rejected the agency's contention that it did not charge the grievant with failing to perform better than her established standards. "[B]ased upon the facts and conclusions of the Arbitrator, it is clear that the Agency, by charging the grievant with misconduct that turned out to be based solely on conduct that met her critical performance standards, did in fact seek to discipline the grievant for failing to perform better than the standards communicated to her pursuant to Chapter 43."

[A]s stated in our initial decision, under Lovshin, where an Agency charges an employee under Chapter 75 based solely on performance that is governed by and meets critical elements set forth for the employee's position, the Agency commits a prohibited personnel practice. In light of the critical element at issue here, and the employee's performance standards for that element, the Arbitrator determined that the grievant's performance met the applicable critical element because she has kept her on-the-air fluffs to a minimum. Moreover, the grievant's receipt of a "highly successful" rating on this element of her performance standards supports the Arbitrator's conclusion. Accordingly, the Agency has not shown that the Arbitrator erred in determining that the Agency committed a prohibited personnel practice under Lovshin.

It is important to note that Chapters 75 and 43 remain as alternative procedures for performance based actions, and Chapter 75 remains the exclusive procedure for misconduct based actions.

The Arbitrator's analysis extended beyond merely finding that the agency failed to prove its charge, but included identifying an applicable critical performance element, reviewing the charge in light of that element and its standards, and considering the agency's appraisal of the employee's performance in the critical element. This decision suggests that agencies taking Chapter 75 misconduct actions, not only should ensure that specifications prove their respective charge of misconduct, but that specifications do not describe behavior a third party could interpret as being governed by a critical performance element, in which the employee's performance is acceptable.