United States Department of the Air Force , Wright-Patterson Air Force Base, Ohio (Agency) and American Federation of Government Employees, Local 1138 (Union)

[ v58 p145 ]

58 FLRA No. 28

UNITED STATES
DEPARTMENT OF THE AIR FORCE
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1138
(Union)

0-AR-3491

_____

DECISION

October 9, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Edward P. Goggin filed by both the Agency and the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. Neither party filed an opposition to the exceptions.

      The Arbitrator found that the Agency failed to provide the grievant with the performance guidance required under the parties' agreement and ordered the Agency to raise the grievant's performance ratings. For the following reasons, we conclude that the portion of the award ordering the Agency to raise the grievant's disputed ratings is deficient, and we modify the award accordingly.

II.     Background and Arbitrator's Award

      Under the Agency's rating system, employees first receive a numerical rating of one to nine for each of nine appraisal factors, and then receive an overall performance rating, which ranges from Unacceptable to Superior. The grievant received a performance appraisal rating the grievant as a six and a seven for two of the nine appraisal factors, and an overall performance rating of Excellent. The appraisal was grieved. The grievance was unresolved and submitted to arbitration, where the Arbitrator framed the issues as:

Did the grievant receive a justified Appraisal Rating . . . ?
Did the [Agency] provide the grievant with "Clear Guidance" as required by Article 15, Section 15.02 f.?[ [n2] ]

Award at 2.

      The Arbitrator found that the grievant's supervisor failed to give the grievant a "justified [a]ppraisal," explaining only that this finding was "[b]ased on all the evidence presented." Id. at 4. The Arbitrator further found that the Agency failed to comply with Article 15, Section 15.02 f. of the agreement because the grievant's supervisor did not provide the grievant with "clear guidance." Id. The Arbitrator summarily concluded that, "if the [a]ppriasal of the grievant was just," then the grievant would have received a rating of at least eight for the two appraisal factors at issue and ordered the Agency to raise those ratings.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the award is based on a nonfact because the remedy granted by the Arbitrator -- raising the grievant's ratings for two appraisal factors to eight -- was based on the Arbitrator's erroneous finding that the Union requested that remedy in the grievance. The Union contends that the grievance was revised during the grievance procedure to request, as a remedy, that the grievant receive scores of nine on the two factors, with a resultant overall rating of Superior. In addition, the Union asserts that the Arbitrator exceeded his authority by defining the issues too narrowly and, as a result, failing to resolve the issue of the grievant's overall performance rating. [ v58 p146 ]

B.     Agency's Exceptions

      The Agency asserts that the award is inconsistent with management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. Citing the two-prong test set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP), the Agency concedes that the award satisfies Prong I, and argues that the award is deficient under Prong II. With regard to Prong I, the Agency claims that the award enforces Article 15, Section 15.02 f. of the parties' agreement, which constitutes a procedure within the meaning of § 7106(b)(2) of the Statute. With regard to Prong II, the Agency claims that the award fails to reconstruct the appraisal factor ratings that management would have given the grievant had management not violated Article 15, Section 15.02 f. of the agreement. The Agency requests the Authority to modify the award by directing the Agency to reevaluate the grievant based on what the grievant would have been rated if the Agency had not erred in the rating process.

IV.     Analysis and Conclusions

A.     The award is not based on a nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993).

      Even if the Union is correct in its claim that the remedy was based on an erroneous finding as to the remedy sought by the Union, the Union has not established that had the Arbitrator properly understood the remedy sought in the grievance, he would have ordered that remedy. Accordingly, we conclude that the award is not based on a nonfact, and we deny the Union's exception.

B.     The Arbitrator did not exceed his authority

      An arbitrator exceeds his or her authority when, among other things, the arbitrator fails to resolve an issue submitted to arbitration. AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issue is accorded substantial deference. AFGE, Local 916, 50 FLRA 244, 246-47 (1995).

      In this case, there is no indication in the record that the parties stipulated the issue to be resolved. The issues as framed by the Arbitrator were whether the grievant received a justified appraisal rating and whether the Agency violated the agreement by failing to provide the grievant with clear guidance. The award is directly responsive to these issues. Moreover, the fact that the Arbitrator did not raise the grievant's overall rating does not demonstrate that the Arbitrator failed to resolve an issue submitted to arbitration. In this regard, both the Authority and Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. United States Dep't of Housing & Urban Dev., 24 FLRA 442, 444 (1986). Accordingly, we conclude that the Arbitrator did not exceed his authority, and we deny the Union's exception. See AFGE, Local 3615, 57 FLRA 19, 21 (2001).

C.     The award is inconsistent with management's rights under § 7106(a)(2)(A) and (B) of the Statute

      The Agency's claim that the award is contrary to management's rights challenges the award's consistency with law. The Authority reviews questions of law 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 determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under § 7106(a) of the Statute is set forth in BEP, 53 FLRA at 151-54. For awards that affect the exercise of management rights, the Authority applies a two-prong test established in BEP to determine whether the award is deficient.

      In BEP, the Authority held that an arbitrator's cancellation of a grievant's rating under an established performance appraisal system affects the exercise of management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. 53 FLRA at 154; see also United States Dep't of the Army, Dugway Proving Ground, Dugway, Utah, 57 FLRA 224, 225-26 (2001); United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687, 690 (1999). No basis is asserted for distinguishing between overall performance ratings and ratings on appraisal factors. Accordingly, we find that [ v58 p147 ] the award raising the grievant's appraisal factor ratings affects management's rights. Therefore, we address whether the award satisfies Prongs I and II of BEP.

      Under Prong I of the BEP framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. 53 FLRA at 153. In this case, the Agency expressly concedes that Prong I is satisfied. Accordingly, we find that Prong I is met. See United States Dep't of the Navy, Naval Undersea Warfare Ctr. Div., Keyport, Wash., 55 FLRA 884, 887 (1999).

      Under Prong II of BEP, the Authority considers whether an award reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. 53 FLRA at 154. More specifically, in cases where an arbitrator cancels a performance rating and orders management to grant a specific performance rating, the arbitrator must base that remedy on a reconstruction of what the grievant's rating would have been if the agency had properly appraised the grievant. United States Dep't of Veterans Affairs, Med. Ctr., Martinsburg, W. Va., 52 FLRA 945, 948 (1997) (VA, Martinsburg). Consistent with this requirement, an arbitrator must find that "the record support[s] raising the grievant's ratings." United States Dep't of Defense, Ogden Air Logistics Ctr., Hill AFB, Utah, 54 FLRA 487, 492-93 (1998) (citation omitted).

      The Arbitrator did not state, and the record does not otherwise indicate, that the award raising the grievant's appraisal factor ratings was based on a finding by the Arbitrator as to what management would have rated the grievant's performance if management had not violated the agreement. There is nothing establishing that if the grievant's supervisor had met with the grievant and provided "clear guidance" under Article 15, Section 15.02 f. of the parties' agreement, then the grievant would have received higher ratings on the two factors at issue. In addition, there is nothing in the award or the record establishing a basis for the specific ratings awarded by the Arbitrator.

      In this regard, the Arbitrator summarily concluded that it was his "opinion" that the grievant would have received "at least a score of [eight]" on the two factors if the appraisal was "just" and, without explanation, the Arbitrator ordered the ratings raised to eight. Award at 4 (emphasis added). However, there is no claim that the agreement required "just" appraisals and, in fact, the failure to provide "clear guidance" was the only contract violation found by the Arbitrator. The Arbitrator made no finding that a failure to provide "clear guidance" warranted the raising of the ratings to eight, which was a two point increase on one disputed appraisal factor and a one point increase on the other. As such, the Arbitrator's award raising the ratings on the two disputed factors does not reflect a reconstruction of what management would have done if it had not violated the parties' agreement. See United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 222, 229-231 (1997) (Dep't of Treasury); United States Dep't of Defense, Def. Logistics Agency, Def. Contract Mgmt. Command, Def. Contract Mgmt. Area Operations Boston, Boston, Mass., 53 FLRA 210, 216-17 (1997) (Dep't of Defense).

      Based on the foregoing, we find that the award fails to satisfy Prong II of BEP, and conclude that the portion of the award raising the grievant's appraisal factor ratings is inconsistent with § 7106(a)(2)(A) and (B) of the Statute.

V.     Decision

      Based on the foregoing, we find that the award is deficient as inconsistent with § 7106(a)(2)(A) and (B) of the Statute. We modify the award to strike the factor ratings ordered by the Arbitrator and direct the Agency to properly reevaluate the grievant in accordance with Article 15, Section 15.02 f. of the parties' agreement. See Dep't of Treasury, 53 FLRA at 233-34; Dep't of Defense, 53 FLRA at 217; VA, Martinsburg