48:0672(69)AR - - Dept. of the Army, Camp Stanley Storage Activity, San Antonio, TX and AFGE, Local 3961 - - 1993 FLRAdec AR - - v48 p672



[ v48 p672 ]
48:0672(69)AR
The decision of the Authority follows:


48 FLRA No. 69

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE ARMY

CAMP STANLEY STORAGE ACTIVITY

SAN ANTONIO, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3961

(Union)

0-AR-2425

_____

DECISION

October 14, 1993

_____

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 Diane Dunham Massey 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 a grievance contesting the grievant's performance appraisal rating. The Arbitrator found that the Agency violated the parties' collective bargaining agreement by improperly evaluating the grievant's performance. The Arbitrator directed the Agency to raise the performance appraisal rating to exceptional.

For the following reason, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a warehouse worker in the Ammunition Branch at the Camp Stanley Storage Activity, initially received a performance appraisal rating of exceptional for the period June 5, 1989, through July 9, 1991. For this performance appraisal, the Agency applied new performance standards, which recorded the "effectiveness/errors rates" of the employee in "absolute numbers[,]" rather than the old performance standards, which recorded such performance in "percentages." Award at 6. The grievant complained to the Agency that he should have received two twelve-month performance appraisals, rather than one two-year appraisal. In light of this complaint, the Agency rescinded the initial performance appraisal and replaced it with two reappraisals. In one of the reappraisals, the grievant received a rating of fully successful for the period June 5, 1989, through September 30, 1990. For this reappraisal, the Agency applied the old performance standards. In the other reappraisal, the grievant received a rating of exceptional for the period October 1, 1990, through September 30, 1991. For this reappraisal, the Agency applied the new performance standards.(*)

The Union filed a grievance disputing the reappraisal for the period June 5, 1989, through September 30, 1990, on the ground that the grievant was entitled to the higher performance rating of exceptional. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:

Did the performance appraisal of the Grievant, . . ., covering the time period June 5, 1989, to September 30, 1990, violate any law, regulation or contract provision? If so, what is the appropriate remedy?

Award at 2.

Before the Arbitrator, the Union maintained that the grievant was entitled to the higher performance appraisal rating of exceptional, with an accompanying monetary bonus, for the period in question. The Union argued, in this connection, that "[t]here [was] no legitimate basis for the lower rating[]" and that the grievant was not counseled on any job problems. Id. at 3. In response to the reasons offered by the Agency to justify the lower rating, the Union argued that "[n]o matter what the relevant [performance appraisal] standard was for the time period," the grievant was entitled to a performance appraisal rating of exceptional. Id. Additionally, the Union argued that the lack of an "Ammunitions Operations Training Certification" had no bearing on the grievant's rating. Id.

Before the Arbitrator, the Agency contended that the lower performance appraisal rating was proper and that the grievant had been appraised fairly and equitably. First, the Agency argued that the lower rating was proper because a different performance standard was applied to the disputed reappraisal than was applied to the initial performance appraisal. In addition, the Agency argued that the lower rating was proper because, during the time period covered by the disputed reappraisal, the grievant was merely a trainee and had not received ammunition operational training certification.

As an initial matter, the Arbitrator found that it was the Union's burden of proof to establish that the Agency's conduct regarding the disputed reappraisal was "an abuse of [m]anagement's discretion." Id. at 5. Then, noting that the grievant's rating of exceptional "for the time frame in dispute [was] part of a larger time frame[,]" the Arbitrator found that "absent cogent [m]anagement justification, it would follow that the [g]rievant should be rated '[e]xceptional'" for the time period of the disputed reappraisal. Id.

The Arbitrator concluded that because the reasons offered by the Agency to justify the lower performance appraisal rating were not supported by "substantive documentation . . . the Agency acted in an arbitrary manner in violation of the intent of the collective bargaining agreement." Id. at 7. In this connection, the Arbitrator rejected the Agency's argument that the lower rating was proper because a different performance standard was applied to the disputed reappraisal than was applied to the initial appraisal. The Arbitrator found that there was "no evidence to show that the [g]rievant did not meet the standards in effect at the time." Id. The Arbitrator also rejected the Agency's arguments that the lower rating was proper because during the time period covered by the disputed reappraisal the grievant was merely a trainee and had not received ammunitions operations training certification. The Arbitrator found that the Agency had not shown that such lack of training or certification could serve as a basis for a lower rating.

Accordingly, the Arbitrator sustained the grievance and directed the Agency to change the grievant's performance appraisal rating from fully successful to exceptional and to grant the grievant "a mutually agreed monetary remedy, if any." Id. at 8. The Arbitrator retained jurisdiction regarding implementation of the monetary portion of the remedy in the event the parties were not able to reach agreement.

III. Positions of the Parties

A. Agency

The Agency claims that the award is deficient because the Arbitrator failed to comply with 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), in which the Authority described a two-prong test governing the remedial authority of arbitrators in cases involving the application of performance standards. The Agency argues that the Arbitrator failed to satisfy the second prong of the test by failing to determine what the grievant's rating would have been if "'the intent of the collective bargaining agreement[]'" had not been violated. Exceptions at 3, quoting Award at 7. The Agency argues that the Arbitrator simply determined that there was a presumption that the grievant was entitled to a performance appraisal rating of exceptional, in the absence of evidence to the contrary.

The Agency also contends that the Arbitrator's finding that there was no evidence to show that the grievant did not meet the standards in effect at the time of the reappraisal does not demonstrate that the grievant was entitled to a higher performance appraisal rating of exceptional. The Agency argues that, under the Agency's performance management regulation, an employee must exceed all performance elements in order to receive an exceptional rating. According to the Agency, no such findings were made by the Arbitrator.

The Agency requests that the Authority modify the award to direct the Agency to cancel the disputed reappraisal and reevaluate the grievant's performance for the period June 5, 1989, to September 30, 1990.

B. Union

The Union maintains that SSA is not applicable to this case because the reevaluation of the grievant, which the Agency seeks in its exceptions, already occurred in the form of the disputed reappraisal. The Union notes, in this connection, that the disputed reappraisal resulted from a complaint the grievant filed with the Agency's Inspector General contesting the initial performance appraisal.

The Union further contends that the evidence establishes that the grievant was entitled to a higher performance appraisal. In this regard, the Union notes that the grievant had "no deficiencies" recorded against him for the period covered by the disputed reappraisal. Opposition at 2. Also, for the appraisal period of June 5, 1989, to September 30, 1990, the Union states that the Agency granted all employees in the grievant's job category a performance appraisal rating of exceptional. The Union views this as evidence substantiating the Arbitrator's award.

IV. Analysis and Conclusions

In SSA, which we find applicable to this case, the Authority discussed the two-prong test governing the remedial authority of arbitrators in performance appraisal matters that had been established in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988). 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.

SSA, 34 FLRA at 328.

We conclude that the award satisfies both prongs of the SSA test. As to the first prong, it is clear that the Arbitrator found that the Agency had applied the performance standards in violation of the parties' collective bargaining agreement. Thus, the Arbitrator concluded that because the reasons offered by the Agency to justify a lower performance appraisal rating were not supported by "substantive documentation . . . the Agency acted in an arbitrary manner in violation of the intent of the collective bargaining agreement." Award at 7.

The award also satisfies the second prong of the required SSA analysis. Under that part of the test, an arbitrator may order management to rate a grievant at a particular level if the arbitrator is able to determine, based on the record, what the rating should have been. Here, the Arbitrator determined that there was no evidence to show why the grievant received a lower rating when he was appraised under the old performance standards than the rating he received when he was appraised under the new standards. Specifically, the Arbitrator found that, while the old standards were phrased in terms of percentages, and the new standards phrased in absolute numbers, "[t]here [was] no evidence that the [g]rievant actually fell below the percentages outlined in the standards." Id. The Arbitrator also found no evidence of any shortcomings or performance problems with respect to the grievant's performance under the old standards that would justify the lower rating. Thus, for purposes of assessing the grievant's performance, the Arbitrator essentially found that there was no difference in the grievant's performance under either set of standards.

Additionally, the Arbitrator found unsupported the Agency's other asserted reasons for lowering the rating. First, the Arbitrator examined the Agency's claim that the grievant "was training for the position" during the reappraisal period. Id. at 5. The Arbitrator found that there was nothing in the appraisal itself that indicated that the fully successful rating was based on the fact that the grievant was a trainee and that there was no showing that it was standard procedure "to rate an employee lower because he was training on the job." Id. Second, the Arbitrator addressed the Agency's assertion that the grievant failed to receive certification in ammunitions training. The Arbitrator found nothing in the appraisal that identified the lack of such certification as a reason for the fully successful rating.

In sum, the Arbitrator found that the Agency had not supported the lower rating of fully successful that was given to the grievant for the period of the reappraisal. Consequently, the Arbitrator directed the Agency to raise the grievant's rating to exceptional.

Based on the Arbitrator's findings and conclusions, we conclude that the Arbitrator's award satisfies the second prong of SSA and that the Arbitrator properly directed the Agency to grant the grievant a performance rating of exceptional. Consequently, we find no merit to the Agency's exception and no basis on which to grant the Agency's request to modify the award and direct the Agency to reevaluate the grievant. See U.S. Equal Employment Opportunity Commission, Washington, D.C. and American Federation of Government Employees, National Council of EEOC Locals, Local 216, 43 FLRA 131, 142-46 (1991) (EEOC) (arbitration award which rejected the grounds used by the agency to support a particular rating for the grievant satisfied the second prong of SSA); U.S. Department of Veterans Affairs, Medical Center and American Federation of Government Employees, Local 1168, 41 FLRA 250, 254 (1991) (VA) (arbitration award which found that the agency failed to state "any rationale" for its decision to lower the grievants' ratings satisfied the second prong of the test).

In reaching our result, we reject the Agency's argument that the Arbitrator failed to satisfy the second prong of the test because she determined that there was a presumption that the grievant was entitled to a higher rating, absent evidence to the contrary. Rather than a mere presumption, the Arbitrator examined the Agency's asserted reasons for lowering the grievant's rating and found that those reasons were unsupported. We find nothing in the award that is inconsistent with SSA. See EEOC; VA.

Similarly, we reject the Agency's argument that the grievant is not entitled to an exceptional rating because the Arbitrator did not find that the grievant exceeded all performance elements. The Arbitrator found that the Agency failed to justify why it had l