52:0945(96)AR - - VA Medical Center, Martinsburg, WV and NAGE, Local R4-78 - - 1997 FLRAdec AR - - v52 p945



[ v52 p945 ]
52:0945(96)AR
The decision of the Authority follows:


52 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

MARTINSBURG, WEST VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-78

(Union)

0-AR-2785

_____

DECISION

February 6, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Stuart R. Waters 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained, in part, a grievance alleging that the Agency improperly rated the grievant's performance and ordered the Agency to raise the grievant's performance rating to "highly successful."

For the following reasons, we conclude that the portion of the Arbitrator's award ordering the Agency to raise the grievant's performance rating to "highly successful" is deficient because it is contrary to the Statute, and we modify the award accordingly.

II. Background and Arbitrator's Award

The grievant was rated as "fully successful" in his sole critical element and received an overall performance rating of "fully successful" for the appraisal year.(1) These ratings were one level lower than the "exceptional" rating in his sole critical element and the "highly successful" overall rating the grievant had received for the previous 2 years. He grieved his overall performance rating, contending that he had not been informed of any deficiencies in his performance and requesting that his performance rating be raised to "outstanding."

After the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue as follows: "Did the Agency violate [Article] 25 of the negotiated agreement by giving [the grievant] an improper performance appraisal[?]"(2) Award at 7.

The Arbitrator found that the Agency provided the grievant with a mid-year review as required by Article 25, Section 4 of the parties' agreement and informed him that his performance as of that date was "fully successful or better." Id. at 11. However, noting that the provision requires the Agency to "apprise employees of their performance on an on-going basis," the Arbitrator stated that during the mid-year review the Agency should have informed the grievant that, because he was on light duty and was limited to restrictive work assignments, he was subject to a "pending downgrade" of his performance rating from previous years. Id. According to the Arbitrator, if the Agency had so apprised the grievant, it would have afforded him an opportunity to "improve[] if physically possible." Id.

The Arbitrator found that the Agency had failed to document any shortcomings on the part of the grievant during the appraisal period or produce evidence that would justify its reducing the grievant's performance rating from the "highly successful" rating which he received in prior years. Noting that the record would not support raising the grievant's overall performance rating to "outstanding," as requested by the Union, the Arbitrator concluded that the grievant should have received a rating of "highly successful." Consequently, the Arbitrator ordered the grievant's overall performance rating raised from "fully successful" to "highly successful."

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is contrary to law. Specifically, the Agency claims that 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 because the Arbitrator canceled the grievant's rating without making the requisite determination that the Agency failed to apply established performance standards or applied them in violation of law, regulation, or the parties' agreement. Further, even assuming that the Arbitrator properly canceled the grievant's rating, the Agency asserts that the Arbitrator erred by raising the grievant's rating without determining, based on the record, what the grievant's rating would have been had a violation not occurred. Therefore, the Agency claims that the Arbitrator did not have the authority to cancel the grievant's rating or to order the rating raised from "fully successful" to "highly successful."

B. Union's Opposition

The Union contends that the Arbitrator's award satisfies the requisite findings for canceling and raising the grievant's performance rating. According to the Union, the Arbitrator found that the Agency violated Article 25, Section 4 by appraising the grievant without keeping him informed of his ongoing performance. Further, the Union claims that the Arbitrator made a determination, based on the record, that the grievant should have received a higher rating when he found that the Agency failed to document any shortcomings by the grievant or make notations that the grievant's performance had dropped from previous years' performance.

IV. Analysis and Conclusions

It is well established that when an arbitrator finds that management has applied an employee's established elements and standards in violation of, among other things, a properly negotiated provision of the parties' agreement, the arbitrator may cancel the employee's performance appraisal or rating. E.g., U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 51 FLRA 379, 382 (1995). When an arbitrator has properly canceled a performance appraisal and orders management to grant a specific performance rating, but fails to base the remedy on a reconstruction of what the grievant's rating would have been if the agency had properly appraised the grievant, the remedy will be found deficient as contrary to section 7106(a)(2)(A) and (B) of the Statute, and the Authority will order management to properly reappraise the grievant. See, e.g., id. at 382-83; U.S. Department of the Army, Headquarters, Army Garrison, Fort Ritchie, Maryland and National Federation of Federal Employees, Local 115, 43 FLRA 968, 972-73 (1992) (Department of the Army). Further, a finding that an agency failed to notify a grievant of performance deficiencies so as to provide the grievant an opportunity to improve his or her performance does not constitute a determination of what the grievant's performance rating would have been had the agency properly applied established performance standards. See, e.g., U.S. Department of Veterans Affairs, Medical Center, Martinsburg, West Virginia and National Association of Government Employees, Local R4-78, 47 FLRA 797, 804 (1993).

The Arbitrator found that the Agency violated Article 25, Section 4 of the parties' agreement by failing to apprise the grievant during his mid-year review of potential shortcomings in his performance. Therefore, because the Arbitrator found that the Agency applied the grievant's established critical and noncritical performance elements and standards in violation of the parties' agreement, we find that he could properly cancel the grievant's performance rating.

However, we find nothing in the Arbitrator's award to indicate that he made a determination, based on the record, that the grievant would have received a "highly successful" performance rating if the Agency had properly rated the grievant. Although the Arbitrator found that the Agency violated Article 25 of the parties' agreement by failing to apprise the grievant of potential shortcomings in his performance during his mid-year review, he did not find that the grievant should have been rated "exceptional" in his critical element, as required under the grievant's performance plan, to warrant a performance rating of "highly successful." Further, the Arbitrator did not determine that the record supported a conclusion that the grievant's performance should be rated at the "highly successful" level. Rather, noting that the Agency failed to document any shortcomings or produce evidence that would justify reducing the grievant's performance appraisal from previous years, he simply concluded that the grievant should receive a rating of "highly successful."

Because the Arbitrator did not determine, based on the record, that the grievant would have received a "highly successful" performance rating if the Agency had properly rated the grievant, we find that the portion of the award ordering the Agency to raise the grievant's rating to "highly successful" is deficient as contrary to section 7106(a)(2)(A) and (B) of the Statute. See, e.g., Department of the Army, 43 FLRA at 972-73. Accordingly, consistent with Authority precedent, we modify the award to require the Agency to properly reevaluate the grievant in accordance with the parties' agreement. E.g., id. at 973.

V. Decision

The Arbitrator's award is modified to provide as follows:

The Agency will reevaluate the grievant for the rating period of April 1, 1993, to March 31, 1994, to determine the rating he would have received if the Agency had not violated the parties' collective bargaining agreeme