43:0968(78)AR - - HQ, Army Garrison, Fort Ritchie, MD and NFFE Local 115 - - 1992 FLRAdec AR - - v43 p968
[ v43 p968 ]
The decision of the Authority follows:
43 FLRA No. 78
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, ARMY GARRISON
FORT RITCHIE, MARYLAND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
January 10, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Herbert N. Bernhardt filed by 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.
The Arbitrator sustained the grievance of an employee who protested the receipt of a performance rating of Fully Successful rather than Highly Successful. The Arbitrator found that the Agency had failed to comply with an Agency regulation requiring that employees be counseled concerning their performance during the annual rating period and ordered the Agency to raise the grievant's performance rating to Highly Successful.
For the following reasons, we conclude that the Arbitrator's award is contrary to law. The award will be modified to require the Agency to reevaluate the grievant to determine the proper rating.
II. Background and Arbitrator's Award
The grievant received an annual performance rating of Fully Successful for the rating period of July 1, 1989, through June 30, 1990. In previous years she had received ratings of Highly Successful. The grievant's supervisor stated in a comment on the performance rating that the grievant was given a lower rating than she otherwise would have received because of her excessive use of sick leave. The supervisor noted that the lower rating did not reflect the grievant's capabilities in the absence of the excessive sick leave usage. The grievant filed a grievance protesting the lower rating and the grievance was submitted to arbitration.
The Union contended before the Arbitrator that the Agency failed to comply with an Agency regulation, USAG FR Regulation 690-33, that required periodic performance progress reviews designed to avoid unexpected performance ratings at the end of the rating period. The Union alleged that the grievant was informed by her supervisor at the mid-term rating review "that her performance continued at a high level of competence[,]" and that "the rating of Fully Successful was not only unexpected, it was arbitrary and capricious and clearly violative of USAG FR Regulation 690-33." Award at 3. The Union maintained that the grievant was entitled to a higher rating because she had exceeded all critical elements except the critical element concerning correspondence and alleged that the Agency had failed to properly apply the performance standards and had discriminated against the grievant because of her sick leave use.
The Agency maintained before the Arbitrator that the grievant's supervisor had properly evaluated the grievant's performance for the period in question and that her prior ratings had no bearing on that rating. The grievant's supervisor testified that he had counseled the grievant about her poor correspondence during the rating period and the supervisor denied that sick leave usage was considered in the rating process.
The Arbitrator ruled that the Agency "erred procedurally in not counseling the Grievant concerning what [the Agency] considered the declining quality of her work." Id. at 7. He found that, under section 7(a)(2) of USAG FR Regulation 690-33, the Agency was required to counsel the grievant about her performance in order "to avoid precisely what happened in this case, 'unexpected performance ratings at the end of the rating period.'" Id. As his award, the Arbitrator ordered the Agency to increase the grievant's rating to Highly Successful for the rating period of July 1, 1989, through June 30, 1990.
III. Positions of the Parties
A. The Agency
The Agency contends that the award is contrary to law and Authority precedent because the Arbitrator ordered that the grievant's performance rating be raised to Highly Successful without making the required finding that the grievant would have been rated Highly Successful if the Agency had not violated USAG FR Regulation 690-33. The Agency maintains that the Arbitrator cannot order the Agency to raise the grievant's rating based solely on a finding that the Agency's regulation was violated.
The Agency cites Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I) and U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990) (SSA II), in which the Authority described the two-prong test to be used in examining an arbitrator's exercise of his or her remedial authority in cases involving the application of performance standards. The Agency also asserts that the present case presents similar circumstances to those in Social Security Administration Headquarters Offices and American Federation of Government Employees, Local 1923, AFL-CIO, 33 FLRA 143 (1988), in which the Authority modified an arbitrator's award to provide for the grievant's reappraisal in accordance with the counseling requirements of the parties' collective bargaining agreement. The Agency maintains that the Arbitrator failed to meet the second prong of the Authority's test because he failed to make a determination as to what the grievant's rating would have been if the regulation had not been violated.
B. The Union
The Union contends that the Arbitrator's award satisfies both requirements of the Authority's two-prong test and that the Arbitrator found that the grievant would have been rated higher if she had been counseled as required by the regulation. The Union maintains that the Arbitrator met the first prong of the test by finding that the Agency violated the regulation and that he met the second prong when he pointed out that the purpose of counseling under the regulation was to avoid an unexpected lower rating. The Union states that the Arbitrator was "implying that [the grievant] would have received the Highly Successful rating if the regulation had been followed." Opposition at 2.
The Union asserts that the Arbitrator took into consideration evidence demonstrating that the grievant was not made aware that her performance would be rated at the lower level and that she was unable, therefore, to correct her performance. The Union states that "[i]mplicit in the [A]rbitrator's findings and award was the necessary finding of a casual [sic] connection between the Agency not following the regulation on counseling and the grievant's rating." Id. at 3.
IV. Analysis and Conclusions
We conclude that the Arbitrator's award is contrary to law and Authority precedent, specifically SSA I and SSA II and the cases that follow those decisions. We find that the Arbitrator has failed to apply the second prong of the test established in SSA I and described in SSA II.
In SSA II, we described the two-prong 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.
SSA II, 34 FLRA at 328.
In this case, the Arbitrator found that the Agency had violated its regulation requiring counseling of employees in order to avoid giving them lower ratings than the employees expected to receive at the end of the rating period. The Arbitrator found, based on the record before him, that the grievant was not informed that her performance for the rating period in question would be rated lower than in past rating periods. Therefore, by finding that performance standards were applied in violation of the applicable Agency regulation, the Arbitrator met the first prong of the test described in SSA II.
However, the Arbitrator did not find that the Agency would have rated the grievant any differently if it had met its obligation to provide counseling and to inform the grievant that she would probably be rated at a lower level than in previous years. In this regard, we reject the Union's contention that a finding that the grievant would have received a higher rating is "implicit in the [A]rbitrator's findings[.]" See Opposition at 3. The Arbitrator found that the Agency "erred procedurally in not counseling the [g]rievant concerning what [the Agency] considered the declining quality of her work" and stated that "[a]ccordingly, [he was] granting her grievance." Award at 7. We find nothing in the Arbitrator's award to indicate that he was able to or did make a determination, based on the record, as to what the grievant's rating would have been if the Agency had not violated the regulation. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3448, 38 FLRA 1443 (1991) (arbitrator properly refused to order a higher performance rating based solely on the agency's violation of a collective bargaining agreement requirement to inform employees of declining performance); SSA II, 34 FLRA at 328. Compare U.S. Department of Veterans Affairs, Medical Center and American Federation of Government Employees, Local 1168, 41 FLRA 250 (1991) (arbitrator properly determined that grievants would have received higher performance ratings if the agency had not violated the parties' collective bargaining agreement by failing to conduct progress reviews and provide grievants copies of their performance standards).
We conclude, therefore, that the Arbitrator's award ordering the Agency to raise the grievant's performance appraisal to Highly Successful is deficient because it is contrary to section 7106(a)(2)(A) and (B) of the Statute. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1395, 38 FLRA 1198, 1202 (1990). The award will be modified to require that the Agency reevaluate the grievant to determin