48:0955(104)AR - - Air Force, 645 Mission Support Squadron, Wright-Patterson AFB, OH and AFGE, Local 1138 - - 1993 FLRAdec AR - - v48 p955

[ v48 p955 ]
The decision of the Authority follows:

48 FLRA No. 104










LOCAL 1138





November 29, 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 David L. Beckman 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, in part, a grievance of three employees contesting their non-selection for promotion. As relevant here, after setting aside the selection actions and directing the Agency to fill the three vacancies in accordance with the parties' Master Labor Agreement (MLA), the Arbitrator directed the Agency to change certain performance appraisals.

For the reasons set forth below, we conclude that the portion of the award ordering the Agency to change the appraisals is deficient. Accordingly, we will set aside that portion of the award.

II. Background and Arbitrator's Award

Three grievants grieved their non-selection for certain vacancies. When the grievance was not resolved it was submitted to arbitration. As relevant here, the issue before the Arbitrator was: "Did the Agency violate . . . the [MLA] between the Air Force Logistics Command and the AFGE?" Award at 3.(*)

The Arbitrator concluded that the procedures used by the Agency to fill the contested positions violated the MLA and that "justice require[d] that the results achieved in the procedure used by management be set aside, and that management repeat the process, . . . following the . . . specified contractual procedure . . . ." Id. at 13. The Arbitrator also concluded, as relevant here, that "[f]airness, . . . require[d] that the appraisals of two of the [g]rievants for 1992 be changed to reflect a rating no lower than the one they enjoyed in 1991 when they were first considered for promotion." Id. at 14. As his award, the Arbitrator directed the Agency to, among other things: (1) set aside the disputed selections; (2) fill the vacancies in the three positions in accordance with the MLA; and (3) change the 1992 appraisals of two of the grievants to overall superior ratings.

III. Positions of the Parties

The Agency argues that the portion of the award directing the Agency to change appraisal ratings is deficient because, according to the Agency, the Arbitrator did not find that the Agency violated law, regulation, or a provision of the MLA in appraising the two grievants. In support, the Agency relies on 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 (1990) (SSA II).

The Union contends that the Arbitrator's award is not deficient because "implicit in the Arbitrator's decision is his conclusion that the two appraisals . . . were lowered for arbitrary and capricious reasons, since they had previously received superior ratings for prior years, and the 1992 appraisals and ratings were accomplished after the grievance was filed." Opposition at 2 (emphasis omitted). The Union points to the Arbitrator's statement that "fairness" required that the appraisals be changed and argues that "[o]ne can conclude from the language used by the Arbitrator that he believed the Activity was biased in rating the grievants, because of filing this grievance." Id. The Union argues that, if the Authority finds that the award is deficient, then the case should be remanded to the parties to seek clarification of the award from the Arbitrator.

IV. Analysis and Conclusions

In SSA I, the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. Subsequently, in SSA II, we described SSA I as establishing a two-prong test and 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 II, 34 FLRA at 328.

In this case, the Arbitrator made no finding that the Agency violated law, regulation, or a provision of the parties' collective bargaining agreement in appraising the grievants or that the Agency failed to apply the established performance standards. Moreover, apart from the Arbitrator's conclusion that "fairness" required changes in the appraisals, the award contains no discussion whatsoever of the appraisals. Award at 14. In these circumstances, we reject the Union's contention that a finding that the Agency improperly applied the established standards is "implicit" in the award. Opposition at 2.

Because the Arbitrator did not find that the Agency failed to apply e