PERFORMANCE REVIEW SEASON: AND THE AWARD GOES TO…
Aside from the fact that most of us don’t wear tuxedos and ball gowns to our reviews, we’re just like Leonardo DiCaprio and Taylor Swift. All of us face performance evaluations. Some performances are reviewed for Oscars and Grammys, and other performances are reviewed for bonuses and job security. The following arbitration awards are particularly insightful this time of year. I give them two thumbs up.
Best Cases in the Category
As we all know, one’s performance often depends upon the direction involved. A union relied on this argument in challenging a poor performance evaluation that resulted in the non-renewal of an employee’s contract. Arbitrator Floyd D. Weatherspoon held in Knox County Career Center Bd. of Ed., 132 LA 486, that the employer did not violate the collective-bargaining agreement in evaluating the grievant, despite assertions that it did not provide a plan for improvement and failed to afford the grievant time to improve.
Weatherspoon found that the employer provided Ann Johnson, an Early Childhood Education Instructor, both a plan and time to implement same for purposes of showing improved performance. The grievant received two evaluations during the year, as required by the contract. The first identified several categories as “Needs Attention,” and expressed departmental expectations. The second took place three months later.
Weatherspoon determined that the grievant was given adequate notice of areas requiring improvement, and was provided sufficient time to make necessary changes between the two evaluations. As the grievant failed to successfully take direction from the employer, that encore review proved to be a flop. Accordingly, the employer acted with just cause in refusing to grant the grievant a callback.
The evaluation of one’s performance might encompass more than the responsibilities of the role. It might also consider one’s attitude on the job. Such was the case in City of McAlester, 124 LA 449, where Arbitrator Charles J. Crider held that the employer did not violate the collective-bargaining agreement when it gave a police officer a negative review based on his habitual complaining at work.
B__, a 12-year police force veteran with a history of good performance reviews and no disciplinary past, received low marks on an evaluation covering the most recent two years of his employment. B__ challenged the negative review, which was used to deny him a merit increase.
Crider acknowledged that the employer’s withholding of the merit increase was primarily attributed to B__’s recalcitrance. “[T]he grievant’s griping,” Crider noted, wasn’t merely limited to a single matter. B__ “apparently found fault with supervision at every turn.” Additionally, behind the scenes, B__ was perceived as a “habitual naysayer” at the police station.
Crider concluded that the employer was “well within its right” in denying the merit increase as grievant’s habitual complaining constituted “behavior that can erode camaraderie.” Because the employer had “a legitimate business interest in seeking to achieve a close-knit, cooperative unit,” Crider continued, “this negative evaluation under these circumstances was justified.”
At the arbitration hearing, B__ admitted that he “dreaded” coming to work and “probably showed it,” but asserted that since being reassigned and assuming his new role, with his new supporting actors in the canine unit, he experienced a change in attitude. Arbitrator Crider commented on the noticeable improvement in B__’s performance, attributing it to effective practices in performance evaluations.
Who Will Take Home the Award?
A review of data provided by Bloomberg BNA's Arbitration Award Navigator shows that of the 231 arbitration awards involving performance evaluations, employers prevailed in 49.4% of cases, unions prevailed in 33.3% of cases, 16% of cases involved mixed prevailing parties, and individuals prevailed in 1.3% of cases.
The chance of a party winning or losing in arbitration on a performance review-related matter is somewhat of a cliffhanger. To fast-forward through the drama and skip this whole episode, stick to the script of the collective-bargaining agreement—whether you’re an employer acting as performance critic, or an employee being evaluated for your performance.
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