53:0190(27)AR - - VA Medical Center, Baltimore, MD and AFGE Local 1923 - - 1997 FLRAdec AR - - v53 p190

[ v53 p190 ]
The decision of the Authority follows:

53 FLRA No. 27










LOCAL 1923





July 11, 1997


Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Joseph A. Sickles 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 did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance alleging that the Agency improperly rated the grievant's job performance. The Arbitrator canceled one of the grievant's element ratings and his overall rating, and ordered the Agency to raise the ratings.

For the reasons discussed below, we conclude that the Agency has failed to establish that the portion of the award canceling the grievant's disputed ratings is deficient and we deny the Agency's exceptions to that portion of the award. However, we conclude that the portion of the Arbitrator's award ordering the Agency to raise the grievant's disputed ratings is deficient because it is contrary to the Statute, and we modify that portion of the award accordingly.

II. Background and Arbitrator's Award

For the performance rating period in dispute, the grievant received ratings of "highly successful" in two of his performance elements and an overall performance rating of "fully successful." The Union grieved these ratings, contending that the grievant should have received "excellent" ratings in the two disputed elements and an overall rating of "outstanding." The Agency subsequently raised the grievant's rating in one element to "excellent," but did not raise the grievant's rating in the other element or his overall rating.

The grievance over the two remaining disputed ratings was submitted to arbitration on the following stipulated issue:

Did the [Agency] violate applicable provisions of 5 U.S.C. Section 4302, 5 C.F.R. Part 430, MP 5, Part I, Chapter 430, Medical Center Memorandum 05-02, and Article 32 of the parties['] Master Agreement by [its] application of the April 1, 1994 through March 31, 1995, Performance Management System, concerning [the grievant], and if so, what shall be the appropriate remedy?

Award at 3.

The Arbitrator found that the Agency "conceded that there were violations concerning" its delay in distributing the grievant's performance plan and holding his mid-year appraisal. Id. at 9. The Arbitrator also found that the Agency failed to inform the grievant about "certain" complaints about his work performance. Id. at 10. In this regard, he ruled that there was no direct showing that the grievant was at fault for the complaints directed at work performed during his shift. Further, the Arbitrator concluded that the delay in holding the grievant's mid-year review "may very well" have had an impact on the grievant's disputed ratings inasmuch as the Agency claimed that it had received complaints about the grievant's work. Id. at 9. Consequently, the Arbitrator canceled the grievant's disputed ratings.

After finding that the grievant had received "excellent" ratings in his other performance elements and was not at fault for complaints about the performance of employees on his shift, the Arbitrator ordered the Agency to raise the grievant's rating in the disputed element to "excellent" and his overall rating to "outstanding."

III. Agency's Exceptions

The Agency contends that the award is contrary to law. Specifically, the Agency claims that the award is contrary to the two-prong test established in SSA I and described in SSA II.(1) The Agency concedes that the Arbitrator found the Agency violated regulations, the parties' agreement, "and applicable law" in rating the grievant, but contends that, because the violation was not prejudicial to the grievant's performance rating, the Arbitrator could not properly cancel the grievant's rating. Exceptions at 2, 6. In the alternative, the Agency contends that if the Arbitrator properly canceled the grievant's two disputed ratings, then that portion of the award requiring the Agency to raise the grievant's ratings is deficient because it is not based on a reconstruction of what the grievant would have received had the violation not occurred.(2)

IV. Discussion

A. Analytical Framework

In U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA No. 21 (1997) (BEP), we revised the two-prong test set forth in SSA I and described in SSA II for determining whether an arbitration award resolving a performance appraisal grievance impermissibly affects management rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. This revision is based upon the plain wording of section 7106 of the Statute and the Supreme Court's decision in Internal Revenue Service v. FLRA, 494 U.S. 922 (1990). BEP, slip op. at 7. In BEP, we recognized that, with a limited exception,(3) an arbitrator's award that affects management rights under section 7106(a)(2) may provide a remedy only in two circumstances: first, for a violation of applicable law, within the meaning of section 7106(a)(2); or second, for a violation of a contract provision that comes within the scope of section 7106(b), which constitutes an exception to section 7106(a). Id. at 7-8.

Under prong I of the BEP analysis, an arbitrator may cancel a performance rating only if management applied the established performance standards for that job element in violation of either an applicable law or a provision of the parties' collective bargaining agreement on a section 7106(b) matter. Id. at 8. In addition, an arbitrator may cancel a rating only if the violation affected the rating. Id.

Under prong II of the BEP analysis, the remedy awarded must reflect a reconstruction of what management's appraisal of the grievant would have been if management had not violated either an applicable law or a provision of the parties' agreement on a section 7106(b) matter. Id. at 9. When the arbitrator is unable to reconstruct what the grievant's rating would have been had management acted properly, the arbitrator must remand the case to management for it to reevaluate the grievant's performance. Id.

B. Application of BEP Analytical Framework

1. Prong 1

The Arbitrator framed the issue, as relevant here, as whether the Agency violated applicable provisions of 5 C.F.R. Part 430 in rating the grievant. The provisions of 5 C.F.R. Part 430 are Government-wide regulations promulgated by the Office of Personnel Management. See National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 462-63 (1990), remanded as to other matters by order, No. 91-1045 (D.C. Cir. July 23, 1991), decision on remand as to other matters, 43 FLRA 47 (1991); see also National Federation of Federal Employees, Local 1442 and U.S. Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, 46 FLRA 1631, 1636 (1993). We find that the Government-wide regulations set forth in 5 C.F.R. Part 430 are properly promulgated regulations issued pursuant to statutory authority and affect individual rights and obligations. As such, we find that the regulations set forth therein have the force and effect of law and constitute applicable laws within the meaning 7106(a)(2) of the Statute. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 393 (1991), enforcement denied on other grounds, 996 F.2d 1246 (D.C. Cir. 1993).

As relevant here, 5 C.F.R. § 430.205(e) provides: "A progress review shall be held for each employee at least once during the appraisal period. At a minimum, employees shall be informed of their level of performance by comparison with the performance elements and standards established for their position." The Agency concedes that the Arbitrator canceled the grievant's disputed ratings based on his finding that the Agency violated applicable law and regulations by delaying the grievant's mid-year review and failing to inform the grievant about complaints concerning his work performance. Accordingly, consistent with the requirements set forth in the prong I analysis of BEP, the Arbitrator's cancellation of the grievance's disputed performance ratings is not contrary to law. See BEP, slip op. at 8. 

Further, we find that the Agency's claim that the violation it committed in rating the grievant was not prejudicial does not provide a basis for finding the award deficient. To the extent that the Agency's claim constitutes an assertion that the award is based on a nonfact, it must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). The Agency's claim that the violation it committed was not prejudicial was asserted before the Arbitrator and rejected. Consequently, such a claim provides no basis for finding the award deficient. Moreover, to the extent that the Agency is claiming that the grievant was not harmed by its violation, the amount of harm caused by an agency's actions is not considered in canceling a disputed rating or appraisal when management has improperly applied the established performance standards. BEP, slip op. at 11 (citing SSA II, 34 FLRA at 327-28).

2. Prong 2

Nothing in the Arbitrator's award supports a conclusion