46:0377(32)AR - - Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE, Local 1592 - - 1992 FLRAdec AR - - v46 p377
[ v46 p377 ]
The decision of the Authority follows:
46 FLRA No. 32
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Emily Maloney 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 exception.
The Arbitrator ordered the Agency to change aspects of the grievant's performance evaluation and to raise the grievant's overall rating. For the following reasons, we conclude that the award is deficient, in part, because it conflicts with a governing Agency regulation.
II. Background and Arbitrator's Award
The Union filed a grievance contesting the grievant's overall performance rating and, when the grievance was not resolved, it was submitted to arbitration on the following issue, as framed by the Arbitrator:
Was [the] grievant . . . rated fairly, accurately, and equitably in accordance with applicable law, rule, regulation and contract. If not, what is the appropriate remedy?
Award at 2.
The Arbitrator concluded that, by failing to meet periodically with the grievant to discuss and review her performance, the Agency violated section 15.02f of the parties' collective bargaining agreement.(1) The Arbitrator also concluded that the Agency violated Air Force Regulation (AFR) 40-450 by failing to provide the grievant a "close-out" evaluation.(2) In addition, the Arbitrator found that the grievant's performance had not properly been rated and she ordered the Agency to raise the grievant's ratings in three elements and two categories.(3) The Arbitrator concluded that "[w]ith the [specified] changes . . . the grievant is entitled to an overall rating of Excellent . . . ." Id. at 9. Consequently, the Arbitrator ordered the grievant's "overall rating . . . changed to Excellent." Id. at 11.
The Agency objects only to the portion of the award ordering the grievant's overall rating raised from fully satisfactory to excellent. According to the Agency, under an applicable Agency regulation,(4) an employee may be awarded an overall rating of excellent only if the employee's performance is rated as having exceeded the applicable performance standard on more than one-half of all critical elements. The Agency maintains that the grievant may not be awarded an overall rating of excellent because, even with the higher ratings on the three elements specified by the Arbitrator, the grievant's performance exceeds applicable standards for only three of eight critical elements. Consequently, the Agency maintains that the award conflicts with the Agency regulation and is deficient.
The Union maintains that the award should be remanded to the Arbitrator for clarification because it contains an "irreconcilable ambiguity." Opposition at 2. According to the Union, although "[i]t is clear that the Arbitrator awarded higher ratings on certain elements, [it is] equally clear that the Arbitrator intended a higher overall rating of 'excellent.'" Id. at 1.
V. Analysis and Conclusions
We conclude that, insofar as the award directs the Agency to raise the grievant's overall rating to excellent, it is deficient.
At the outset, we note that three things are undisputed. First, there is no dispute that AFR 40-452 governs determinations of the grievant's overall performance ratings. Accordingly, if the award is inconsistent with that regulation, it is deficient. See U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990). Second, it is undisputed that, under AFR 40-452, the grievant may not properly be awarded an overall performance rating of excellent unless the grievant's performance is rated as exceeding applicable standards on at least five critical elements. Third, it is undisputed that, as a result of the award, the grievant's performance appraisal contains "exceeds" ratings on only three critical elements.
Put simply, it is clear and undisputed that the award, as written, conflicts with a governing Agency regulation. As such, it is deficient under section 7122(a) of the Statute.
In this regard, the Union's sole argument is that the award is ambiguous and should be remanded to the parties to enable them to obtain a clarification from the Arbitrator. We disagree. The Arbitrator clearly and unambiguously stated that the change in the overall rating resulted from the changes in the element ratings. That is, the Arbitrator clearly linked the overall change to the element changes. We find nothing in the award on which to conclude that the Arbitrator intended to raise the grievant's overall rating for any reasons different from, or additional to, the one she stated. As such, we find no ambiguity and no reason to remand the award to the parties. Compare U.S. Department of the Air Force, 509th Bombardment Wing, Pease Air Force Base, New Hampshire and National Association of Government Employees, Local R1-111, 41 FLRA 1035, 1041 (1991).
Insofar as the award directs the Agency to raise the grievant's overall rating to excellent, it is deficient as conflicting with a governing Agency regulation. Accordingly, we will modify the award to delete the requirement that the grievant's overall rating be raised.
The award is modified to delete the requirement that the Agency change the grievant's overall rating to excellent.
(If blank, the decision does not have footnotes.)
1. Article 15.02f of the parties' agreement provides, in pertinent part:
Supervisors will meet with individual employees periodically in the appraisal cycle to discuss the employee's performance, the adequacy of the performance plan, and any changes the supervisor may make to the work plan. . . .
Attachment to the Agency's Exception at 64.
2. AFR 40-452, section 2-6 provides, in relevant part:
If the rating official changes or departs during the rating period and has supervised the employee for 90 days or more, a closeout appraisal and discussion is accomplished before the supervisor leaves.
Attachment to the Agency's Exception.
3. It is undisputed that, under the Agency's performance appraisal system, the performance of employees such as the grievant is rated on critical elements, non-critical elements, and "work behaviors." Exceptions at 2. The grievant's performance was rated on 11 elements (8 critical and 3 non-critical) and 9 work behaviors. Id.; Award at 2. For purposes of this decision, it is unnecessary to specify the disputed elements and ratings.
4. The Agency cites AFR 40-452, section 2-17c, which provides the following definition of an "excellent rating":
Excellent. Employee has exceeded more than one-half of the critical elements and meets al