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