35:1244(142)AR - - DOD, San Antonio Air Logistics Center, Kelly AFB, TX and AFGE Local 1617 - - 1990 FLRAdec AR - - v35 p1244
[ v35 p1244 ]
The decision of the Authority follows:
35 FLRA No. 142
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
May 31, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Otis H. King. A grievance was filed disputing the grievant's performance ratings on three job factors. The Arbitrator sustained the grievance and directed the Agency to raise the grievant's ratings on the three factors and, as a result of those raised ratings, to raise the grievant's overall rating.
The Agency filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 225 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.
For the following reasons, we conclude that the award is inconsistent with management's rights to direct employees and assign work under section 7106(a)(1)(A) and (B) of the Statute and, therefore, is deficient under section 7122(a). Accordingly, we will set aside the award.
II. Background and Arbitrator's Award
A grievance was filed disputing the grievant's performance ratings on appraisal factors 1, 4, and 9.(*) The grievant received ratings of 4 ("slightly below fully successful"), 6 ("slightly above fully successful"), and 5 ("fully successful"), respectively, on the three factors. Award at 1. The grievant's overall performance was rated as "slightly above fully successful." Id. The grievant requested that his ratings for each of the three appraisal factors be raised to 9 ("outstanding"). Id. The grievance was submitted to arbitration on the following issue:
Was the Grievant . . . appraised properly on appraisal factors 1, 4, and 9 on his 1988-89 annual performance rating? If not, what shall be the remedy?
The Arbitrator found that during the relevant appraisal period, the grievant had (1) worked as an alternate supervisor for 5 months, (2) received a certificate of appreciation for making a suggestion that had been adopted by the Agency, (3) been selected as "Employee of the Quarter" by his fellow employees. Id. at 2. The Arbitrator also found that the grievant had received overall performance ratings of "fully satisfactory" for the 1984-85 and 1985-86 appraisal years, and an overall rating of "slightly above fully satisfactory" for the 1987-88 appraisal year. Id. The Arbitrator noted that, at the arbitration hearing, the Agency offered no evidence other than the grievant's previous performance ratings.
The Arbitrator concluded that the grievant had established that the ratings he received in all three disputed factors were too low. In particular, the Arbitrator concluded that the grievant's work as an alternate supervisor demonstrated his abilities in a "major component" of factor 9. Id. In addition, the Arbitrator found that, "in the absence of any contradictory evidence, it must be accepted that the Grievant's production was no lower than anyone else in the unit," and, therefore, the grievant's rating for factor 4 was incorrect. Id. Finally, the Arbitrator stated that, in view of the grievant's selection as "employee of the quarter," and his receipt of a certificate of appreciation for a suggestion, he was not properly evaluated on factor 1.
As his award, the Arbitrator provided the following:
[I]t is clear that the Grievant has met his burden of proof that his appraisal ratings were too low in the challenged categories. It is therefore ordered that the Grievant's performance ratings be raised to 63, "Above Fully Satisfactory." His score of 54 is to be increased by nine (9) points by raising elements 1, 4, and 9 by three (3) points each.
Id. at 3.
III. The Agency's Exceptions
The Agency contends that the award is contrary to its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. The Agency states that, under the Authority's decision in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (Social Security Administration I), an arbitrator may direct an agency to grant a grievant a particular performance rating only when the arbitrator is able to determine, based on the record, what a grievant's performance rating would have been if management had not violated law, regulation, or the parties' collective bargaining agreement. The Agency asserts that the Arbitrator found no violations of law, regulation, or the collective bargaining agreement and that, even assuming that there had been such a violation, the Arbitrator did not have a basis in the record before him to determine what the grievant's ratings would have been absent that violation. In addition, the Agency maintains that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement because the Arbitrator did not address or discuss relevant portions of the agreement.
IV. Analysis and Conclusions
In Social Security Administration I, the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. Subsequently, in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990) (Social Security Administration II), we described Social Security
Administration I as "establish[ing] a two-prong test." We explained the test as follows:
First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order management to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.
In this case, the Arbitrator did not find that the Agency (1) failed to apply the established standards; or (2) violated law, regulation, or a provision of the parties' collective bargaining agreement in appraising the grievant. In fact, the Arbitrator did not reference any provisions of law, regulation, or the parties' agreement. Compare Social Security Administration II, 34 FLRA at 330 (Authority remanded award to parties to seek clarification from arbitrator because award, which referenced a relevant provision of the parties' agreement, was ambiguous as to whether the agency had violated that provision in appraising the grievant).
As the Arbitrator did not find a violation of law, regulation, or contract, and did not find that the Agency failed to apply established standards, the Arbitrator was not authorized to cancel the grievant's ratings on the three disputed factors. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 2006, 35 FLRA No. 99 (1990). Consequently, by sustaining the grievance and effectively directing the Agency to raise the grievant's ratings for those factors, the award is contrary to management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. See id. In addition, because the Arbitrator did not find a violation of law, regulation, or contract, we have no basis on which to modify the award to require that the grievant be reevaluated. See id. Compare U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 237 (1990) (as it was clear that the first prong o