31:0872(64)AR - Ogden Air Logistics Center and AFGE Local 1592 -- 1988 FLRAdec AR



[ v31 p872 ]
31:0872(64)AR
The decision of the Authority follows:


  31 FLRA NO. 64

AKA:              0-AR-1423
                  31 FLRA 872 (1988)

Date:             18 MAR 1988

OGDEN AIR LOGISTICS CENTER

              Activity

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1592

              Union

Case No. 0-AR-1423

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator James A. Evenson. The Arbitrator ordered the
Activity to (1) change the grievant's performance appraisal
rating to a higher rating and (2) develop standards for the
grievant's position which are more quantifiable in practice.
Exceptions were filed on behalf of the Activity by the Department
of the Air Force (the Agency) under section 7122(a) of the
Federal Service Labor - Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations.
The Union filed an opposition to the Agency's exceptions.

     For the reasons stated below, we conclude that the award is
contrary to section 7106(a)(2)(A) and (B) of the Statute.
Accordingly, that portion of the award directing that the
grievant receive a higher performance appraisal rating must be
modified to provide that the Activity must reevaluate the
grievant for the period between February 1, 1986, and January 31,
1987. That portion of the award directing the Activity to review
the first five standards in the performance plan for the
grievant's position and to develop standards which are more
quantifiable must be set aside. 

     II. Background and Arbitrator's Award

     As his annual performance appraisal for the period between
February 1, 1986, and January 31, 1987, the grievant received an
overall numerical rating of 60 and an overall performance rating
of "fully successful." A grievance was filed, and subsequently
submitted to arbitration, claiming that the performance appraisal
rating given to the grievant was not accurate. The grievant
sought to have: (1) his overall performance rating changed from
"fully successful" to "excellent"; (2) his Job Performance
Appraisal System (JPAS) rating changed from "met expectations" to
"exceeded expectations"; and (3) his rating in eight of the nine
appraisal factors changed to "outstanding." Award at 9.

     The Arbitrator noted that the Activity conceded at
arbitration that the grievant had not been specifically counseled
during the appraisal period about what was necessary in order for
him to exceed expectations in each of the elements of the
performance plan for his position. Award at 10. He also noted
that while each of the elements in the performance plan for the
grievant's position appeared to be quantitative, the grievant's
actual performance rating was based on subjective criteria. Award
at 11. The Arbitrator found that the Activity was negligent in
performing its duty under the parties' collective bargaining
agreement to inform and counsel the grievant regarding what was
specifically expected of him in his job performance. Award at 12.
See also Award at 4.

     The Arbitrator concluded that it was "quite impossible for
management or the Arbitrator to go back and redo the performance
appraisal in a quantitative manner; and there is not enough
evidence to indicate the Grievant was entitled to the rating he
desired . . . or felt he should have received." Award at 12-13.
However, because of the Activity's failure to counsel the
grievant on what was necessary to improve his performance, the
Arbitrator directed the Activity to grant the grievant an overall
numerical rating of 66, an overall performance rating of
excellent, and any written or monetary awards to which he would
have been entitled. Award at 13.

     In addition to the specific remedies for the grievant, the
Arbitrator found that the Agency should review the first five
standards in the performance plan for an Electroplater and make
an attempt to develop standards which in practice are more
quantifiable. Award at 12 and 13.

     III. Positions of the Parties

     A. Agency's Exception

     The Agency contends that the Arbitrator's award is contrary
to section 7106(a)(2)(A) and (B) of the Statute. The Agency
argues that, by directing the Activity to give the grievant an
overall numerical rating of 66 and an overall performance rating
of excellent based on management's negligence in counseling the
grievant rather than on the grievant's proven excellent
performance, the Arbitrator independently evaluated the
grievant's performance and substituted his judgment for that of
management as to what the grievant's evaluation and rating should
be. The Agency maintains that the Arbitrator should have ordered
that the grievant be reevaluated under the established standards
and elements.

     B. Union's Opposition

     The Union contends that the Arbitrator acted properly in
directing that the grievant's performance appraisal rating be
raised to a higher rating. The Union argues that although the
standards were written objectively, they were not applied
objectively. The Union maintains that if the Authority does not
agree with the Arbitrator, the award should not be set aside but
rather, should be modified to require the Activity to reevaluate
the grievant and retroactively grant him the rating, and any
awards, to which he was entitled.

     IV. Analysis and Conclusion

     In Social Security Administration and American Federation of
Government Employees, AFL - CIO, 30  FLRA  1156 (1988), we
reexamined the remedial authority of arbitrators in performance
appraisal matters. We held that:

      when an arbitrator finds that management has not
      applied the established elements and standards or
      that management has applied the established
      elements and standards in violation of law,
      regulation, or a properly negotiated provision of
      the parties' collective bargaining agreement, the
      arbitrator may cancel the performance appraisal
      or rating. When the arbitrator is able to
      determine on the basis of the record presented
      what the rating of the grievant's work product or
      performance would have been under the established
      elements and standards, if they had been applied,


      or if the violation of law, regulation, or the
      collective bargaining agreement had not occurred,
      the arbitrator may direct management to grant the
      grievant that rating. If the record does not
      enable the arbitrator to determine what the
      grievant's rating would have been, the arbitrator
      should direct that the grievant's work product or
      performance be reevaluated by management as
      appropriate.

30  FLRA  at 1160-61.

     In this case, the Arbitrator found that "there is not enough
evidence to indicate that the Grievant was entitled to the rating
he desired . . . or felt he should have received." Award at 13.
However, based on the Activity's violation of the parties'
agreement by its failure to counsel the grievant on what was
necessary to improve his performance, the Arbitrator found that
the "Grievant should have received an overall numerical rating of
66 and an overall performance rating of Excellent." Award at 12.
The Arbitrator did not find that the existing standards were
improperly applied to the grievant nor did he determine what the
grievant's rating would have been under the established elements
and standards. Instead, the Arbitrator directed the Activity to
raise the grievant's performance appraisal rating based on his
finding that the Activity did not provide the grievant with
proper counseling and guidance as required by the parties'
agreement. Award at 12.

     The Arbitrator was authorized to cancel the grievant's
performance appraisal rating. 30  FLRA  at 1160. If the evidence
of record had been sufficient to enable him to determine what the
rating of the grievant's work product or performance would have
been under the established elements and standards, the Arbitrator
could have then directed the Activity to grant the grievant that
rating. 30  FLRA  at 1160. However, the Arbitrator specifically
found that "there (was) not enough evidence to indicate the
Grievant was entitled to the rating he desired . . . or felt he
should have received." Award at 13. Consequently, the
Arbitrator's remedial authority was limited to directing that the
grievant's work product or performance be reevaluated by the
Activity as appropriate. 30  FLRA  at 1160-61. This portion of
the award must be modified accordingly.

     The Arbitrator noted that the Activity has implemented an
acceptable method of counseling employees regarding their
performance and has rewritten the performance standards for the grievant's position. Nevertheless, he directed the
Activity to review the first five standards in the performance
plan for the grievant's position and "to develop standards which
in practice might be quantifiable"; in the alternative, the
Activity was to make "a reasonable attempt to make them more
objective in practice." Award at 12.

     In Newark Air Force Station and American Federation of
Government Employees, Local 2221, 30  FLRA  616 (1987), we held
that an arbitrator may examine the performance standards and
elements established by management for a grievant only in order
to determine whether they comply with applicable legal and
regulatory requirements, notably the provisions of 5 U.S.C. 4302
and 5 C.F.R. Chapter 430. If an arbitrator were to find that a
grievant's performance plan did not comply with applicable legal
requirements, the appropriate remedy would be for the arbitrator
to direct the agency to establish a plan which complies with
applicable legal requirements. 30  FLRA  at 636.

     In this case, there is no indication that the Arbitrator was
asked to examine or, in fact, did examine the grievant's
performance standards and elements to determine whether they
comply with applicable legal and regulatory requirements. In the
absence of a finding by the Arbitrator that the grievant's
performance standards and elements do not comply with applicable
legal requirements, the Arbitrator could not order the Agency to
change them.

     Accordingly, the portion of the Arbitrator's award directing
the Agency to review the first five standards in the performance
plan for the grievant's position and to develop standards which
are more quantifiable or, in the alternative, to make those
standards more objective in practice, is deficient and must be
set aside.

     V. Decision

     The award is modified to provide that management will
reevaluate the grievant under the Activity's established
performance elements and standards for the grievant's position of
Electroplater and apply that rating for the appraisal period
between February 1, 1986, and January 31, 1987. That portion of
the award which directs the Activity to review the first five
standards in the performance plan for the grievant's position and
to develop performance stand