United States, Department of the Army, United States Army, Aviation and Missile Command, Redstone Arsenal, Alabama (Agency) and American Federation of Government Employees, Local 1858 (Union)

[ v58 p400 ]

58 FLRA No. 97

UNITED STATES
DEPARTMENT OF THE ARMY
UNITED STATES ARMY
AVIATION AND MISSILE COMMAND
REDSTONE ARSENAL, ALABAMA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1858
(Union)

0-AR-3492

_____

DECISION

March 31, 2003

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Patricia Thomas Bittel filed by the Agency under § 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 cancelled the grievant's disputed performance appraisal and ordered the grievant's prior appraisal extended. She also awarded the grievant backpay and ordered the Agency to approve the grievant's application for training.

      For the reasons set forth below, we find that the extension of the grievant's appraisal, the award of backpay, and the order to approve training are deficient, and we set them aside. We remand this matter for the Agency to reevaluate the grievant for the disputed appraisal period.

II.     Background and Arbitrator's Award

      The Agency established a new performance appraisal system, pursuant to which employees are numerically appraised under established and weighted job elements. The new system was negotiated with the Union and set forth in AMCOM Regulation 690-5. Under the regulation, an employee's cumulative rating is converted to an overall rating of A, B, C, or U. A rating of "A" is assigned to numeric appraisals of 85-100; a rating of "B" to appraisals of 70-84; a rating of "C" to appraisals of 50-69; and a rating of "U" to appraisals of 0-49.

      The first rating period under the new appraisal system was from October 1, 1997, to June 30, 1998, and subsequent periods were from July 1 to June 30.

      For the first rating period of October 1, 1997, to June 30, 1998, the grievant was rated on six elements and was assigned an overall rating of "B." The grievant filed a grievance disputing the appraisal. The grievance was submitted to arbitration on the stipulated issue of whether the grievant's performance rating for the period from October 1, 1997, to June 30, 1998, was "proper." Award at 7.

      In resolving the grievance, the Arbitrator reviewed the grievant's ratings on each of her job elements. The Arbitrator found that the grievant's numeric ratings for several elements were supported by the evidence, but she found deficiencies with the other ratings.

      Specifically, on the element of technical competence, the Arbitrator found that the rating was influenced by lack of training, which the Agency failed to provide the grievant. The Arbitrator determined that it was "patently unfair" for the Agency to criticize the grievant for a failure caused by the Agency's own actions and that her rating in technical competence "must be deemed unreliable." Id. at 10. The Arbitrator also determined that the rating was unreliable because it was inconsistent with a higher rating the grievant's supervisor gave her in support of the grievant's application for a promotion in February 1998. Accordingly, the Arbitrator ruled that the rating "lack[ed] substantiation." Id. at 11.

      On the element of working relationships, the Arbitrator found that "[n]o specific problem was identified, hence none is found to exist." Id. Accordingly, the Arbitrator ruled that "[g]iven the evidence in the record, [the grievant's] relatively poor rating of six out of 10 cannot be justified." Id.

      On the element of management/leadership, the Arbitrator found that the grievant "was rated in this category despite unrebutted testimony that she should not have been because she was not a supervisor." Id. at 13. The Arbitrator noted that the effect of this was that "all her ratings in other elements were off due to improper assignment of weights." Id.

      In addition, the Arbitrator found that the grievant's supervisor "considered reports that [the grievant] was [ v58 p401 ] not working well with others and problems in keeping programs on track in determining Grievant's ratings across several categories." Id. The Arbitrator concluded that "[i]t is simply not fair to downgrade an employee repeatedly for the same weakness." Id. Accordingly, she ruled that the grievant's ratings "in segregated elements suffered from a bleed-over effect and are therefore unreliable." Id.

      The Arbitrator also addressed the grievant's claims concerning a midyear review and the presence of her senior rater at her performance review. The Arbitrator rejected the grievant's claim that she had not received a midyear review. However, the Arbitrator found that there was no indication that working relationships, communications, resource management, or customer relations were discussed at the review even though these were areas the grievant's supervisor had identified as weaknesses in the grievant's appraisal. Accordingly, the Arbitrator ruled that "as to the majority of critical elements, Grievant was denied required feedback." Id. at 16.

      On the issue of the grievant's senior rater, the Arbitrator determined that "Regulation 690-5 does not provide for the Senior Rater to be present during any meetings regarding performance evaluation." Id. Accordingly, she ruled that the senior rater's "presence at Grievant's performance review breached the rating chain and denied her the opportunity for objective Senior Rater review." Id.

As her award, the Arbitrator ruled:
     The performance appraisal given to Grievant was improper and it is therefore declared void. Her performance appraisal dated September 16, 1997 shall therefore be extended to cover the period from September 16, 1997 to August 8, 1999.
     Grievant shall have her record adjusted accordingly and shall receive compensation for income directly lost due to the improper appraisal. . . .
     If Grievant has not yet undergone advanced management training, her application shall be approved upon submission.

Id. at 17. The Arbitrator denied the grievant's requested remedy of a retroactive promotion to GS-14.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient because it is contrary to § 7106 of the Statute and because the Arbitrator exceeded her authority. The Agency argues that the award is contrary to management's right to assign work under § 7106(a)(2)(B) by ordering approval of management training for the grievant, and that the award is contrary to management's rights to direct employees and to assign work under § 7106(a)(2)(A) and (B) by canceling the grievant's disputed appraisal and by substituting a different appraisal until August 1999. The Agency also argues that the Arbitrator exceeded her authority by extending her remedy until August 1999 when the disputed appraisal period ended on June 30, 1998.

      Noting the analytical framework for resolving management right exceptions set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Agency asserts that the training order affects management's right to assign work under § 7106(a)(2)(B) and fails to satisfy prong I of BEP. The Agency maintains that it is well established that the assignment of job-related training during duty hours constitutes an assignment of work within the meaning of § 7106(a)(2)(B). Exceptions at 9 (citing AFGE Local 1345, 48 FLRA 168 (1993) (Proposal 10)). The Agency also claims that the training order fails to satisfy prong I of BEP because it does not provide a remedy for the violation of an applicable law within the meaning of § 7106(a)(2) or a contract provision negotiated pursuant to § 7106(b) and that, accordingly, the order is deficient. In this regard, the Agency notes that the Arbitrator cited no regulatory or contractual language that the Agency violated in not providing the grievant advanced management training.

      With respect to the cancelled rating and the Arbitrator's other remedies, the Agency maintains that the orders fail to satisfy prongs I and II of BEP. As to prong I, the Agency maintains that the Arbitrator did "not specify which, if any, contractual or regulatory provisions were violated by the [Agency] in issuing the grievant's performance appraisal." Id. at 5. The Agency states that it appears that the Arbitrator found violations of AMCOM Regulation 690.5 pertaining to midyear reviews and senior raters. The Agency notes that these provisions were negotiated with the Union and should be considered to be part of a collective bargaining agreement. However, the Agency asserts that the Arbitrator's findings of other improprieties are not [ v58 p402 ] addressed in the regulation and cannot be viewed as violations of the regulation.

      The Agency maintains that in BEP, the Authority held that to satisfy prong I in a performance appraisal case, the violation must have affected the rating. The Agency contends that even if the Arbitrator found violations of AMCOM Regulation 690.5, this portion of the award is deficient because the Arbitrator never found that absent the violations, the grievant's rating would have been higher.

      As to prong II, the Agency asserts that the Arbitrator's remedy extending the grievant's prior appraisal is ambiguous. The Agency maintains that one interpretation is that by ordering the grievant's prior appraisal extended, the Arbitrator ordered the grievant rated "A." According to the Agency, another interpretation is that the Arbitrator ordered the grievant's prior rating under another performance appraisal system actually extended. The Agency argues that, under either interpretation, the award is deficient.

      The Agency maintains that "the only possible contractual violations were not conducting an effective mid-point counseling session and having the second level supervisor at the performance review meeting." Id. The Agency claims that the award does not reflect that "by either having a more specific mid-point counseling session or not having the second level supervisor at the review meeting, management would have given the grievant a level `A' performance rating." Id. (emphasis in original).

      The Agency also contends that to the extent that the Arbitrator ordered the grievant's prior appraisal extended until August 8, 1999, the award is contrary to management's rights to direct employees and to assign work because it would require the Agency to cancel the grievant's appraisal for July 1, 1998, to June 30, 1999, without any finding by the Arbitrator that this appraisal was improper. In addition, the Agency claims that by extending or substituting an appraisal until August 8, 1999, the Arbitrator exceeded her authority because the stipulated issue was limited to the grievant's appraisal for the period of October 1, 1997, to June 30, 1998. The Agency similarly claims that the award is in excess of the Arbitrator's authority to the extent that the extension of the grievant's prior appraisal under the prior appraisal system precludes the Agency from appraising the grievant under the new appraisal system until August 9, 1999.

B.     Union's Opposition

      The Union contends that the award is not deficient. The Union argues that the cancellation of the disputed appraisal satisfies prong I of BEP. The Union asserts that the Arbitrator found that "the inclusion of a supervisory factor in the evaluation, penalizing grievant on the appraisal for not having Management Training when management denied her the training under dispute during the same rating period, and bleed-over of one weakness into several factors was indeed a violation of the negotiated contract." Opposition at 9. The Union also asserts that the Agency's actions affected the grievant's "right to a fair performance evaluation." Id. The Union maintains that the Arbitrator expressly found that management violated AMCOM Regulation 690-5, which, as interpreted and applied by the Arbitrator, required management to apply the established performance standards to the grievant and to inform her of her work deficiencies. Thus, the Union argues that the negotiated provisions of AMCOM Regulation 690-5 ameliorate adverse affects flowing from management's appraisal of employees and constitute arrangements within the meaning of § 7106(b)(3).

      The Union also argues that the extension of the grievant's prior appraisal satisfies prong II. The Union claims that the Arbitrator reconstructed what management would have rated the grievant under the established standards had it acted properly because she "specifically found that the grievant's senior rater submitted rating documentation clearly demonstrating that the grievant should have received a summary rating of `A.'" Id. at 11.

      The Union states that the Agency approved the grievant's application for advanced management training, but that "the approved course of instruction is no longer offered." Id. at 13. The Union does not otherwise address the Arbitrator's order pertaining to training.

IV.     Analysis and Conclusions

A.     Standard and Framework of Review

      The Agency's exception contending that the award is contrary to § 7106 of the Statute challenges the award's consistency with law. Accordingly, we review the question of law raised by the exception and the award de novo. See, e.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995).

      When an agency asserts that an award conflicts with management rights under § 7106, we apply the framework set forth in BEP. Under BEP, upon finding that an award affects a management right under § 7106, we apply a two-prong test. Under prong I, we examine whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2), or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Under prong II, we consider whether the remedy reflects a reconstruction of [ v58 p403 ] what management would have done if management had not violated the law or contractual provision.

      In terms of performance appraisal cases, management's evaluation of employees under an established performance appraisal system constitutes the exercise of management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. See, e.g., BEP, 53 FLRA at 154. Accordingly, an arbitrator's cancellation of management's evaluation of an employee affects the exercise of those rights. See id

      We take this opportunity to reiterate that because the rating and appraisal of employees under established performance standards constitutes an exercise of management's rights to direct employees and to assign work, arbitrators may not substitute their judgment for that of management as to what a grievant should have been rated. See, e.g., Bureau of Engraving and Printing, United States Dep't of the Treasury, 20 FLRA 380, 383 (1985) (Dep't of the Treasury). In restricting arbitrators from "independently apprais[ing] or rat[ing] a grievant," BEP, 53 FLRA at 154, the Authority rejects appraisals by arbitrators that are not, under prong I, directly linked or connected to a finding by the arbitrator of a violation of an applicable law or a contract provision negotiated pursuant to § 7106(b), as well as appraisals that do not reflect a reconstruction, under prong II, of what management would have rated the grievant if management had not violated that applicable law or that contract provision negotiated pursuant to § 7106(b).

      For example, in United States Dep't of Veterans Affairs Med. Ctr., Northampton, Mass., 53 FLRA 1743, 1744 (1998), the arbitrator ordered that the grievant's rating be changed to "exceptional" in two disputed areas and his overall rating be changed to "outstanding." The arbitrator ordered the changed rating because the agency had committed "defects" in the rating process and had failed to take into account the grievant's contributions. Id. The Authority found that the award was deficient under prong I of BEP because the arbitrator "did not explicitly link his findings with the [a]gency's violation of any law or provision of the parties' agreement[.]" Id. at 1745.

      Similarly, in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 222 (1997) (BEP II), the Authority found that under prong II, the award was deficient insofar as the arbitrator had ordered the agency to raise the grievant's ratings for elements I and IV of her disputed appraisal. The Authority first concluded that the arbitrator permissibly cancelled the grievant's disputed performance appraisal based on her finding that the agency violated the parties' collective bargaining agreement. See 53 FLRA at 228. However, the Authority concluded that the arbitrator's order to raise the grievant's ratings for elements I and IV was deficient under prong II because it not based on a reconstruction of what management would have rated the grievant if it had not violated the agreement.

      With respect to element I, the arbitrator ordered the grievant's rating raised because "the grievant's performance exceeded the standards for `fully successful.'" Id. at 229. The Authority determined that this order was deficient because the arbitrator "did not state and the record d[id] not otherwise indicate that this finding was based on a determination by the [a]rbitrator as to what management would have rated the grievant's performance if management had not violated . . . the collective bargaining agreement." Id. The Authority ruled that instead, this constituted an impermissible "independent[] evaluat[ion] [of] what the grievant's rating should have been." Id.

      With respect to element IV, the arbitrator ordered the grievant's rating raised because the arbitrator attributed the grievant's disputed rating to "the `deteriorated relationship' between the grievant and her supervisor[.]" Id. at 230. As with element I, the Authority found that this raised rating was deficient because it had "no specified or apparent connection to applicable law or a contract provision on a section 7106(b) matter." Id.

      In sum, arbitrators resolving grievances in performance appraisal cases must take care to comply with the BEP analysis as set forth above.

B.     The award satisfies prong I.

      By cancelling the grievant's disputed performance appraisal, the award affects management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. Accordingly, it is necessary in this case to examine whether the award satisfies BEP.

      The Agency does not argue that the award is deficient under prong I on the ground that the Arbitrator did not find a violation of an applicable law or a provision of a collective bargaining agreement that was negotiated pursuant to § 7106(b). Rather, the Agency's only argument under prong I is that the Arbitrator did not find that the violations of AMCOM Regulation 690.5 affected the grievant's rating. For the reasons that follow, we reject this argument.

      In asserting that the cancellation does not satisfy prong I, the Agency states that it appears that the Arbitrator found violations of AMCOM Regulation 690.5, pertaining to midyear reviews and senior raters, and that this regulation was negotiated with the Union and should be considered a collective bargaining agreement.

      The Arbitrator expressly found a violation of AMCOM Regulation 690.5 by the senior rater's attendance at the grievant's performance review meeting. In [ v58 p404 ] addition, the Arbitrator implicitly found a violation of section 5.5 of AMCOM Regulation 690.5, which pertains to midyear reviews and periodic feedback. We conclude that the violations of AMCOM Regulation 690.5 related to the performance appraisal process and are the basis of the cancellation of the disputed appraisal. Accordingly, we conclude that the Agency has provided no basis under prong I for finding that the Arbitrator's award is deficient. [n1] 

C.     The Arbitrator's extension of the grievant's prior appraisal is deficient.

      The Arbitrator ordered that the grievant's "performance appraisal dated September 16, 1997 shall . . . be extended to cover the period from September 16, 1997 to August 8, 1999." Award at 17. In our view, the Arbitrator expressly ordered the Agency to extend the grievant's prior appraisal. Examining whether this remedy reflects a reconstruction on the basis of violations of AMCOM Regulation 690-5, pertaining to midyear reviews and senior raters, we find that the award fails to satisfy prong II of BEP.

      Nothing in the award supports a conclusion that the Arbitrator's remedy of extending the grievant's prior performance appraisal was based on a reconstruction of what management would have done, or how management would have rated the grievant for the disputed appraisal period, if, as required by the regulation, the grievant's supervisor had provided effective feedback and the senior rater had not attended the performance review. Extension of the grievant's appraisal, as ordered by the Arbitrator, cannot reflect a reconstruction when the grievant's prior appraisal was conducted under a performance appraisal system that differed from the system of the disputed appraisal and when the disputed appraisal period ended June 30, 1998, not August 8, 1999, as extended by the Arbitrator. [n2] 

      Accordingly, the Arbitrator's extension of the grievant's prior appraisal with the attendant award of any applicable backpay fails to satisfy prong II and is deficient as contrary to § 7106. [n3]  However, as the Agency has failed to establish that the cancellation of the grievant's disputed appraisal is deficient, we will modify the award to order the Agency to reappraise the grievant. See, e.g., BEP II, 53 FLRA at 233-34.

D.     The Arbitrator's order to approve training is deficient.

      We conclude that the Arbitrator's order to approve training is contrary to management's right to assign work under § 7106(a)(2)(B) of the Statute.

      It is not disputed that the training that the Arbitrator ordered the Agency to approve is job-related and would occur during duty hours. Accordingly, this part of the award affects management's right to assign work. See, e.g., AFGE Local 1345, 48 FLRA at 185 ("An agency's right to assign work includes the right to assign employees to attend job-related training during duty hours and the right to determine the type of training that is appropriate.").

      As the Arbitrator's order affects management's right to assign work, we apply the BEP framework. Assuming, without deciding, that the award complies with prong I of BEP, see, e.g., Soc. Sec. Admin., Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268 (2001), we find that the order is nevertheless deficient because it fails to satisfy prong II of BEP. We conclude that ordering the Agency to approve training for the grievant does not reflect reconstruction of what the Agency would have done had it not violated either the provision pertaining to midyear progress reviews or the provision pertaining to senior performance rating officials. Nothing in these provisions addresses, directly or indirectly, approval of employees for training. Consequently, reconstruction of what the Agency would have done had it complied with these provisions of AMCOM Regulation 690.5 cannot entail approval of the grievant for advanced management training. Accordingly, this portion of the award is contrary to § 7106 of the Statute, and we set it aside. See id. at 269.

V.     Decision

      The award is modified to strike the Arbitrator's orders to extend the grievant's prior appraisal, to award any applicable backpay, and to approve training. This matter is remanded for management to reevaluate the grievant for the disputed appraisal period in accordance with AMCOM Regulation 690.5.



Footnote # 1 for 58 FLRA No. 97 - Authority's Decision

   We note that this argument seems to be directed more to prong II, not prong I, and reiterates the Agency's reconstruction argument under prong II. We will address the Agency's reconstruction argument and resolve under prong II whether the award reflects what management would have rated the grievant if it had not violated AMCOM Regulation 690.5.


Footnote # 2 for 58 FLRA No. 97 - Authority's Decision

   Although, as noted above, the Arbitrator found deficiencies in some of the grievant's ratings besides the violations of AMCOM Regulation 690.5, none of these deficiencies support the award. These deficiencies do not constitute a violation of either an applicable law, within the meaning of § 7106(a)(2), or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Moreover, even if they did, the Arbitrator's award does not reflect a reconstruction of what management would have done if management had not violated these provisions.


Footnote # 3 for 58 FLRA No. 97 - Authority's Decisi