American Federation of Government Employees, Local 48 (Union) and United States Department of the Interior, Bureau of Indian Affairs, Olympic Peninsula Agency, Aberdeen, Washington (Agency)

[ v56 p1082 ]

56 FLRA No. 191

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 48
(Union)

and

UNITED STATES DEPARTMENT OF THE
INTERIOR, BUREAU OF INDIAN AFFAIRS
OLYMPIC PENINSULA AGENCY
ABERDEEN, WASHINGTON
(Agency)

0-AR-3313

_____

DECISION

January 31, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

Decision by Member Pope for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Luella E. Nelson filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the Agency committed unwarranted and unjustified personnel actions when it denied the grievant a within grade increase (WIGI) and career ladder promotion based on improper performance standards. The Arbitrator ordered the Agency to determine the grievant's eligibility for the WIGI and promotion using proper performance standards and to apply its determinations retroactively. For the following reasons, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      Prior to receiving the grievant's performance rating, the Agency's personnel office approved him for a WIGI. Subsequently, the personnel office received the grievant's performance rating showing that his performance was below an acceptable level of competence. Based on this rating, the grievant's WIGI was denied and the grievant was not considered for a career ladder promotion. The Agency later discovered that the grievant's performance rating was invalid because the absolute standards used to rate the grievant had been previously invalidated by the Merit Systems Protection Board. Consequently, the Agency cancelled the performance rating, but did not retract the WIGI denial.

      The grievant filed a grievance that, when not resolved, was submitted to arbitration, where the Arbitrator set out the following issues relevant to this exception: "Whether the Agency knowingly committed continuing unwarranted and unjustified personnel actions and procedural error by applying and using invalid performance standards to retroactively deny [the grievant a WIGI and career ladder promotion]. If so, what should be the remedy?" Award at 2-3.

      The Arbitrator found that the Agency committed continuing unwarranted and unjustified personnel actions and procedural error by knowingly evaluating the grievant using invalid performance standards. However, because "those improper standards remain[ed] the only standards by which the Arbitrator [could] gauge what management would have done[,]" the Arbitrator concluded that she could not determine how management would have rated the grievant using appropriate performance standards. Id. at 63. Therefore, the Arbitrator ordered the Agency to develop an appropriate performance plan and evaluate the grievant under the new plan after 90 days. The Arbitrator also ordered the Agency to grant the grievant's WIGI and career ladder promotion retroactively if he demonstrated an acceptable level of competence under the new plan during that period. See id.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union claims that the Arbitrator erred by not awarding the grievant relief under the Back Pay Act. The Union claims that after the WIGI properly went into effect as scheduled, the Agency could not retroactively deny the WIGI based on invalid performance standards. The Union asserts that the Agency's retroactive denial of the WIGI, as well as its use of invalid performance standards, were unjustified and unwarranted personnel actions that resulted in the loss of the grievant's WIGI and career ladder promotion. Therefore, according to the Union, the appropriate remedy under the Back Pay Act is to restore the WIGI and grant the promotion with backpay and interest. [ v56 p1083 ]

B.     Agency's Opposition

      The Agency claims that the Union's exception does not demonstrate that the award is deficient. The Agency argues that an employee must be at an acceptable level of competence to receive a WIGI or career ladder promotion under the Back Pay Act. Because the Arbitrator did not find that the grievant's performance was at an acceptable level of competence, the Agency argues that the grievant is not entitled to relief under the Act.

IV.     Analysis and Conclusions

      When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      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 directly resulted in the withdrawal or the reduct