U.S. Department of the Air Force, Warner Robins Air Force Base, Georgia (Agency) and American Federation of Government Employees, Local 987 (Union)

[ v56 p541 ]

56 FLRA No. 84

U.S. DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR FORCE BASE, GEORGIA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
(Union)

0-AR-3232

_____

DECISION

July 31, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Member Cabaniss for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Nancy Kauffman 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 denied the portion of the Union's grievance dealing with the elements and standards of the performance plan. The Arbitrator found that claim not to be arbitrable through the expedited arbitration procedure. The Arbitrator sustained the portion of the grievance relating to the grievant's annual appraisal. The Arbitrator found that by not providing the grievant with contractually mandated information, the Agency did not comply with the parties' agreement. As a result, she awarded the grievant 1% of her base annual salary in damages and ordered the Agency to comply with Article 15, Section 15.02(f) of the parties' agreement.

      For the reasons set forth below, we find that the award of 1% damages violates the Back Pay act and we set aside that portion of the award.

II.     Background and Arbitrator's Award

      The grievant received a rating of "fully successful" on her annual performance appraisal for the 1999 rating cycle. [n1]  The grievant was surprised that she did not receive an "exceeds" rating even though her periodic review during the year indicated that there was room for improvement in her performance. Award at 2. Her supervisor also testified that he had a lengthy conversation with her about her performance at that time, and also on a regular basis regarding how to improve her performance so as to get promoted. Id.

      The grievant filed a grievance with the Agency which was denied. The Union then invoked expedited arbitration as provided for by section 7.08 of the parties' agreement.

      As the parties were unable to agree on the issues, the Arbitrator framed the issues as follows:

(1)     Is the portion of the grievance dealing with the performance plan arbitrable under the MLA's expedited arbitration procedure? If so, was it timely? [n2] 
(2)     Was the Grievant's performance evaluation for the period ending 3/31/99 a true reflection of her performance for the annual appraisal period? If not what shall the remedy be?

      As to the second issue, the Arbitrator stated that while the grievant's performance rating was a true reflection of her performance for the rating period, it did not accurately reflect opportunities missed by the grievant to improve her performance because of her supervisor's failure to comply with the Article 15 section 15.02(f) of the parties' agreement. Award at 3. This section provides:

Supervisors will meet with individual employees periodically during 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. Such discussions shall provide clear guidance to the employee on what type of performance will merit a rating of "not met", "met", and "exceeds" on each element of the performance plan. This guidance will be annotated in the AF 971 file. [ v56 p542 ]

The Arbitrator found both testimony and documents providing evidence that this was not done, and as a result, "the [g]rievant did not have the opportunity to strive for a rating that would have resulted in a monetary award." Id. The Arbitrator also found that it was reasonable to assume, based on the testimony of the grievant's supervisors, that had she been provided adequate information on how to exceed the standards, the grievant would have done so. Id.

      As a result, the Arbitrator found that while it was inappropriate to give the grievant a full performance award that she did not earn, it was also necessary to recognize that she did suffer the loss of a potential monetary award. Therefore, the Arbitrator awarded the grievant "damages" of 1% of her annual salary and ordered management to comply with Article 15, Section 15.02(f) of the parties' agreement. Id. at 4. [n3] 

III.     Agency's Position  [n4] 

      The Agency contends that the award: (1) is contrary to law, rule or regulation in that it (a) awards punitive damages, (b) violates the Back Pay Act, and (c) is contrary to Air Force Regulation 40-452, paragraph 1-10f; (2) exceeds the Arbitrator's authority; and (3) fails to draw its essence from the parties' agreement.

      As to the contrary to law, rule or regulation exceptions, the Agency first claims that in awarding the grievant damages in the amount of 1% of her base annual salary, the Arbitrator made an award of punitive damages and such an award against the Federal government is contrary to law. The Agency cites to Veterans Administration Medical Center, Cleveland Ohio and American Federation of Government Employees, 19 FLRA 242, 243 (1985) (VAMC) (citing Missouri Pacific Railroad v. Ault, 256 U.S. 554, 41 S. Ct. 593, (1921) and Painter v. Tennessee Valley Authority, 476 F.2d 943 (5th Cir. 1973)) as support for this.

      Regarding the Back Pay Act exception, the Agency alleges that the Arbitrator did not find that "but for the violation, the [grievant] would have achieved a higher rating." Exceptions at 3. Instead, the Agency argues, the Arbitrator only indicated that had the grievant been provided the additional information she would have "been allowed the opportunity to strive for a higher rating." Id. The Agency asserts that, while a higher rating [n5]  might have resulted in some form of recognition pursuant to the terms of the agreement, the Agency still had the reserved right under the agreement to determine whether the recognition would be monetary or nonmonetary, and in any event the employee's actual performance during the rating period did not warrant a higher rating. Thus, concludes the Agency, there is no evidence the employee would have received a higher rating or monetary award "absent the violation." Id.

      The last contrary to law, rule or regulation argument is that the award is contrary to Air Force Regulation 40-452, paragraph 1-10f. The Agency alleges that this regulation does not allow for the grieving of the non-receipt of an award and that it reserves to management the right to determine whether an award is warranted.

      Next, the Agency maintains the Arbitrator exceeded her Authority. The Agency alleges that the Arbitrator clearly found the grievant's performance evaluation to be a true reflection of her performance during the appraisal period. Exceptions at 2. As such, the Agency claims the issue of remedy was not appropriate and the Arbitrator therefore decided an issue not properly before her.

      Finally, the Agency argues that the award does not draw its essence from the parties' agreement based on two provisions in the contract. The first provision is Article 15, Section 15.04. The Agency alleges that by giving the grievant a performance award, the Arbitrator has disregarded management's discretion to determine which employees are entitled to a monetary award under Article 15, Section 15.04. The second provision is Article 7, Section 7.08. This provision of the parties' agreement lists the eleven topics that must be dealt with through expedited arbitration and performance awards are not included. According to the Agency, since awards are not included, the Arbitrator has issued an award that does not draw its essence from the parties' agreement. [ v56 p543 ]

IV.     Analysis

A.      The Award is Contrary to Law, Rule or Regulation

1.     Standard of Review

      The Authority's role in reviewing arbitration awards depends upon the nature of the appealing party's exceptions. U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994) (U.S. Customs). Where a party's exception challenges an award's consistency with law, the Authority reviews the question of law raised by the exception and the arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs, 43 F.3d at 686-87). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

2.     The Award Violates the Back Pay Act

      An award of backpay is authorized under the Back Pay Act only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or the reduction of an employee's pay, allowances, or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218-19 (1998) (HHS).

      In applying the Back Pay Act, the Authority must determine whether there has been an unjustified or unwarranted personnel action, and then whether there is a causal relationship between the improper personnel action and loss of pay. See HHS, 54 FLRA at 1219 (the required finding that the pay loss would not have occurred but for the unwarranted action is not a separate, independent requirement of the Act but merely amplifies the causal connection requirement of the Act).

      A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. See U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773, 785 (1998). Here, the Arbitrator found that the Agency did not comply with Article 15 section 15.02(f) of the parties' agreement because the Agency did not properly annotate the grievant's AF971 file as the provision required. The Agency does not contest this conclusion in its exceptions. Thus, this violation of the parties' agreement constitutes an unjustified or unwarranted personnel action.

      With regard to the second requirement, the Arbitrator must make a finding that the employee had some actual loss in order to award compensation to a grievant. An employee is only entitled to receive compensation "equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred." 5 U.S.C. § 5596(b)(1)(A)(i). The Agency argues that the Arbitrator did not find that "but for the violation, the [grievant] would have achieved a higher rating." Exceptions at 3. According to the Agency, the grievant did not warrant a higher rating based on her performance and there is no evidence the grievant would have received a higher rating or a monetary award absent the violation. Id.

      Here, the Arbitrator made no findings that the Agency's actions resulted in an actual loss to the employee. In fact, the Arbitrator states that the appraisal of fully successful "accurately reflects the [g]rievant's performance," that "it is inappropriate to give the grievant a full performance award that she did not earn," and the employee suffered a "potential [loss of a] monetary award." Award at 3. The Arbitrator has not made a finding that the grievant suffered an actual, as opposed to potential, loss of a monetary award. As such, the 1% awarded the grievant violates the Back Pay Act and is, therefore, deficient as contrary to law under section 7122(a) of the Statute.

      In view of our determination, we do not address the Agency's remaining exceptions.

V.     Decision

      The Arbitrator's award of "1% damages" violates the Back Pay Act and is set aside. The portion of the award requiring the Agen