Appealed from Arbitrator.
Friedman, Rich, and Davis, Circuit Judges.
Upon determining that the respondent Bell's performance had been unacceptable, the employing agency demoted him from grade GS-10 to grade GS-5. On review of that decision, an arbitrator upheld the determination of unacceptable performance but reversed the demotion and directed the agency to reassign Bell to the first available position at grade GS-10 for which he was qualified. The arbitrator took this action because he concluded that the agency's demotion violated a provision in the collective bargaining agreement between the agency and the union that represented Bell.
Pursuant to 5 U.S.C. §§ 7121(f) and 7703(d) (1982), the Director of the Office of Personnel Management filed a petition for review of that decision. The Director asserted that the decision will have a significant impact upon Civil Service law. See Devine v. Brisco, 733 F.2d 867, 871 (Fed. Cir. 1984). We granted the Director's petition, and we now reverse the arbitrator's decision.
A. The arbitrator's findings of fact are set out in his initial decision, American Fed'n of Gov't Employees, Local 1923 (AFL-CIO) v. Social Sec. Admin., Dep't of Health and Human Servs., No. 85K/02477 (July 18, 1985) (Initial Arbitration Decision), and are not in dispute. Briefly, the facts are as follows:
Bell was employed in July 1978 as a grade GS-5 claims authorizer in the Social Security Administration (agency)'s Office of Disability Operations. He received a number of promotions, and in 1981 he was promoted to a grade GS-10 claims authorizer. While working in that office, Bell's performance was always rated as fully satisfactory or better.
In July of 1982, Bell voluntarily transferred from the Office of Disability Operations to another division in the agency, the Division of Appeals Processing, in order to increase his chances for further promotions. After reassignment to the new position, however, Bell's performance deteriorated and generally was rated as unsatisfactory. In February of 1983, the agency placed Bell on a performance improvement plan to enable him to improve his work. When Bell's performance had not improved by February of 1984, he was reassigned to another position in the division "in the hopes that by giving him a fresh start in a new environment, his performance would improve." Id. at 5. Bell's performance did not improve, however, and in September of 1984 he was demoted to the position of grade GS-5 check claims inquiry clerk.
B. The union sought arbitration of Bell's demotion, pursuant to the collective bargaining agreement between the agency and the union. See 5 U.S.C. § 7121(e). After a hearing, the arbitrator set aside the demotion and directed the agency to assign Bell to a higher grade position.
The arbitrator held that "the Agency has clearly proved that [the] grievant's performance . . . was unacceptable." Initial Arbitration Decision, slip op. at 11. The arbitrator ruled, however, that unless no vacancies or special staffing needs existed, the collective bargaining agreement required that if an employee whose performance was deficient was capable of performing in another position in the same grade or at the next lower grade, the agency was required to assign the employee to that position. Id. at 15-16.
The arbitrator held that the agency had not shown any legitimate staffing reasons to justify the five-grade demotion. Id. at 16. The arbitrator ruled that since Bell was capable of performing adequately in certain positions at the grade GS-10 level, as shown by his satisfactory work at that grade in his prior assignment, the agency improperly had demoted Bell from his grade GS-10 position to a grade GS-5 position.
The arbitrator noted that Bell's performance had always been rated satisfactory when he worked as a grade GS-10 claims authorizer in the agency's Office of Disability Operations, and that Bell's performance problems had begun only after his transfer to the Division of Appeals Processing. According to the arbitrator, the reason for the difference in Bell's performance in the two divisions was that in the Division of Appeals Processing Bell worked on a number of cases that involved decisions of administrative law judges, which generally were more complex than those he had previously handled in the Office of Disability Operations. Id. at 13-15.
The arbitrator concluded that Bell was capable of working as a grade GS-10 claims authorizer provided that he was not required to handle cases that involved appeals from decisions of administrative law judges. The arbitrator ordered that
[the] grievant shall be given a right to the first available vacancy as a Claims Authorizer in an [Office of Disability Operations] division which does not process [administrative law judge] cases at a grade of GS-10 or below, and if that grade is less than a GS-10, than [sic] he shall have the further right to the first available vacancy at a higher grade until he reaches a GS-10.
C. Pursuant to 5 U.S.C. §§ 7703(d), 7121(f), the Director of the Office of Personnel Management petitioned the arbitrator to reconsider his decision. Relying upon this court's decision in Lisiecki v. Merit Sys. Protection Bd., 769 F.2d 1558 (Fed. Cir. 1985), cert. denied, 475 U.S. 1108, 106 S. Ct. 1514, 89 L. Ed. 2d 913 (1986), the Director contended that the arbitrator lacked the "power to determine whether [the] grievant [was] qualified for any position other than that which management assign[ed] him to, because [an] arbitrator cannot mitigate penalties imposed for incompetence." See American Fed'n of Gov't Employees, Local 1923 (AFL-CIO) v. Social Sec. Admin., Dep't of Health and Human Servs., No. 85K/02477, slip op. at 2 (May 2, 1986) (Reconsideration Decision). The Director further asserted that if the collective bargaining agreement were interpreted to require an agency to reassign a deficiently performing employee to particular positions within the agency, the agreement would violate 5 U.S.C. § 7106(a), which reserves to management the right to assign and reduce in grade its employees.
On reconsideration, the arbitrator ruled that his original interpretation of the collective bargaining agreement had been correct, that his decision did not conflict with Lisiecki, and that even if the agreement, as he had interpreted it, violated 5 U.S.C. § 7106(a), he had "most serious doubts" about whether he (as distinguished from a court) could declare a provision in a collective bargaining agreement illegal.
A. The Collective Bargaining Agreement. In pertinent part, section 8(C) of the collective bargaining agreement provides:
Should remedial action fail and the employee's performance continue to be unacceptable after a reasonable opportunity to demonstrate improvement, the employee may be liable for adverse action under 5 U.S.C. Sec. 43. The appropriate personnel action will depend on the following considerations:
1. When the employee is capable of performing another position of the same grade, the supervisor may propose to reassign ...