United States, Department of the Navy, Naval Surface Warfare Center, Carderock Division, Acoustic Research Detachment, Bayview, Idaho (Agency) and International Association of Machinists and Aerospace Workers, District 160, Lodge 282 (Union)

[ v59 p763 ]

59 FLRA No. 137

UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL SURFACE WARFARE CENTER
CARDEROCK DIVISION
ACOUSTIC RESEARCH DETACHMENT
BAYVIEW, IDAHO
(Agency)

and

INTERNATIONAL ASSOCIATION
OF MACHINISTS
AND AEROSPACE WORKERS
DISTRICT 160, LODGE 282
(Union)

0-AR-3612

_____

DECISION

March 19, 2004

_____

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 Richard E. Allen 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. [n2] 

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement in its appraisal of the performance of the grievants. As a remedy, he ordered their ratings raised. For the reasons that follow, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      The two grievants, who are union stewards, filed a grievance disputing their performance appraisals for the period of July 1, 2000, to June 30, 2001. The grievants had received performance ratings of level 3 (Fully Successful), and they claimed that they received those ratings because of their union activities. The grievance was not resolved and was submitted to arbitration on the issue of whether the Agency violated the parties' collective bargaining agreement.

      The Arbitrator sustained the grievance. He concluded that the Agency violated Article 3, Section 3.1 and Section 3.2 of the agreement. [n3] 

      The Arbitrator found that for many years until the appraisal periods of July 1, 1999, to June 30, 2000, and July 1, 2000, to June 30, 2001, the grievants' supervisor had rated them at level 4 (Exceeds Fully Successful). For the periods ending in 2000 and 2001, the supervisor rated the grievants at level 3. [n4]  The Arbitrator noted that for the disputed 2001 appraisal period, the grievants had received lower performance ratings than all other similarly situated employees in the same job classification.

      The Arbitrator found that the grievants had actively participated in negotiations for a term collective bargaining agreement in 1999 and 2000. He further noted that the Agency had settled an unfair labor practice (ULP) charge which alleged that in 1999 the grievants' supervisor and others made comments that interfered with employees in the exercise of their rights under the Statute. The Agency settled the charge by agreeing to joint statutory training provided by the Authority, which the grievants' supervisor was required to attend.

      The Arbitrator ruled that the grievants had demonstrated union animus as a motivating factor in the appraisal of their performance. He found that union animus was established as a result of all the circumstances, including the timing of the appraisal.

      In addition, he concluded that the Agency had failed to articulate any legitimate reason for the level-3 ratings. He found that the asserted reasons for the rating were pretextual. In his view, the Agency failed to [ v59 p764 ] explain what was different in the grievants' performance from previous years in which they had been rated level 4.

      As a remedy, the Arbitrator ordered the Agency to cease discriminating against the grievants in future performance ratings. He also ordered the grievants' performance ratings for the disputed appraisal period raised to level 4.

III.     Agency's Exceptions     

      The Agency contends that the award is contrary to § 7116(d) and . . .7106(a)(2)(A) and (B) of the Statute.

A.      Section 7116(d)

      The Agency argues that the award is contrary to § 7116(d) because the ULP charge filed by the grievants and the grievance in this case "concern[] the same issue." Exceptions at 10. The Agency asserts that both focus "solely on the lowered evaluations." Id. The Agency further argues that the award conflicts with § 7116(d) because the Arbitrator considered "acts and evidence from a time period that was the subject of a prior filed ULP[.]" Id. at 8. The Agency maintains that the Arbitrator inappropriately relied on the ULP charge settled by the Agency and the grievants' level-3 performance ratings for 2000 because these matters "occurred during a period considered in a prior ULP." Id. The Agency claims that the Arbitrator in effect has turned the grievance into a rehearing of the earlier ULP charge filed by the grievants.

      The Agency also argues that "[g]iven the paucity of evidence presented by the grievants," the Arbitrator erred in finding that the grievants established union animus. Id. at 15. The Agency notes that it "reasserts each objection formerly raised to the evidence attempted to be offered by the grievants." Id. at 15 n.14.

B.      Section 7106(a)(2)(A) and (B)

      The Agency argues that the award is contrary to § 7106(a)(2)(A) and (B) because the order to raise the grievants' performance rating impermissibly affects management's rights to direct employees and assign work. The Agency asserts that under prong II of United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the award does not reflect reconstruction of what management's appraisal of the grievants would have been had it not acted improperly. The Agency maintains that the grievants' level-4 ratings prior to 2000 are "not probative of their level of performance in the period being grieved and did not amount to . . . reconstruction[.]" Id. at 18. The Agency claims that the Arbitrator erred by failing to consider its evidence that the grievants' performance was not above fully successful and that this evidence must be considered by the Arbitrator on remand.

IV.      Analysis and Conclusions

A.     The award is not contrary to § 7116(d).

      We review questions of law raised by exceptions to an arbitrator's award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we determine whether the award is consistent with the applicable standard of law. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making this determination, we defer to the arbitrator's underlying factual findings. See id.

      In order for a grievance to be precluded under § 7116(d) of the Statute by an earlier-filed ULP charge, the issue that is the subject matter of the grievance must be the same issue that was the subject matter of the ULP charge. See, e.g., United States Dep't of Housing and Urban Dev., Denver, Colo., 53 FLRA 1301, 1316 (1998) (HUD). In determining whether a grievance and a ULP charge involve the same issue, the Authority examines whether the charge and the grievance arose from the same set of factual circumstances and whether the legal theories advanced in support of the charge and the grievance are substantially similar. See 53 FLRA at 1317.

      We conclude that the issue that is the subject matter of the grievance is not the same issue that was the subject matter of the ULP charge.

      The ULP charge disputed the grievants' performance ratings for the appraisal period of July 1, 1999, to June 30, 2000, while the grievance disputed the grievants' performance ratings for the appraisal period of July 1, 2000, to June 30, 2001. As the Agency acknowledges in its management rights argument, each appraisal year is factually separate and distinct. Accordingly, the ULP charge and the grievance did not arise from the same set of factual circumstances for purposes of applying § 7116(d). See Equal Employment Opportunity Comm., 53 FLRA 465, 472-73 (1997) (underlying factual circumstances of the ULP charges and the grievances were not the same for purposes of applying § 7116(d)); United States Dep't of Health and Human Serv., Soc. Sec. Admin., Office of Hearings and Appeals, Region II, 36 FLRA 448, 451 (1990) (HHS) (cases arising in different geographical locations based on different factual predicates). [n5]  [ v59 p765 ]

      The Agency's exception goes beyond arguing that the award is deficient because the issue in the grievance and the ULP charge is the same. The Agency also argues that the award is deficient because the Arbitrator considered evidence from a time period that was the subject of the ULP charge and essentially allowed relitigation of the ULP charge. However, as the Authority held in HUD, there is no support for the argument "that evidence adduced at a ULP hearing, or otherwise related to a ULP charge, is inadmissible in a subsequent arbitration involving the same subject matter." 53 FLRA 1317-18. Similarly, because the Agency has failed to establish that the issue of the ULP charge and the grievance is the same, there is no basis for finding that the award is contrary to principles of res judicata or collateral estoppel or constituted an improper relitigation of the issues raised by the grievance. See HHS, 36 FLRA at 451-52.

      The Agency also argues that the Arbitrator erred because there is no evidentiary support for his finding of union animus. Deferring to the Arbitrator's findings of fact and evaluation of evidence, we find that the Agency's argument provides no basis for finding the award deficient. See, e.g., NFFE Local 1827, 52 FLRA 1378, 1385 (1997) (disagreement with an arbitrator's evaluation of the evidence provides no basis for finding an award deficient).

      Accordingly, we deny this exception.

B.      The award is not contrary to § 7106(a)(2)(A) and (B) of the Statute.

      When an agency asserts that an award conflicts with management rights under . . .7106(a), we apply the framework set forth in BEP. 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). See BEP, 53 FLRA at 154. Accordingly, an arbitrator's cancellation of management's evaluation of an employee affects the exercise of these rights. See id. Because the Arbitrator cancelled the grievants' level-3 performance ratings and raised them to level 4, it is necessary for the Authority to apply the BEP framework.

      With regard to prong I of BEP, there is no contention by the Agency that Article 3, Section 3.1 and Section 3.2 were not enforceable by the Arbitrator. The Agency focuses its management rights arguments exclusively on reconstruction under prong II. Accordingly, we address only prong II. See United States Dep't of the Navy, Naval Undersea Warfare Ctr. Div., Keyport, Wash., 55 FLRA 884, 887 (1999) (prong I not addressed when agency argued only prong II; exception denied because award reflected reconstruction).

      Under prong II in performance appraisal cases, we consider whether the appraisal or rating ordered by the arbitrator reflects reconstruction of what management would have rated the grievant if management had not violated applicable law or the collective bargaining agreement. See United States Dep't of Def., Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 54 FLRA 487, 492 (1998) (Hill AFB). The Agency is correct in arguing that an arbitrator may not simply substitute a grievant's appraisal from a prior year. See, e.g., United States Dep't of Def., Def. Logistics Agency, Def. Contract Mgmt. Command, Def. Contract Mgmt Area Operations Boston, Boston, Mass., 53 FLRA 210, 217 (1997). However, when an arbitrator finds that a grievant was rated down because of an agency's violation of the parties' collective bargaining agreement, we will uphold the arbitrator's reinstatement of a prior performance appraisal. See Hill AFB, 54 FLRA at 492.

      In this case, it is clear that the Arbitrator found that the grievants were downgraded from their prior level-4 performance ratings because of union animus in violation of Article 3, Section 3.1 and Section 3.2 of the parties' collective bargaining agreement. In addition, the Arbitrator did not fail to consider the Agency's evidence of the grievants' performance. Instead, he specifically concluded that the stated reasons for the level-3 ratings were pretextual. Accordingly, the Agency fails to establish that the award is contrary to § 7106(a)(2)(A) and (B) of the Statute. The award reflects the Arbitrator's reconstruction of what the Agency would have rated the grievants, absent union animus in violation of the agreement. See id. at 493.

      Accordingly, we deny this exception.

V.      Decision

      The exceptions are denied. [ v59 p766 ]


Appendix

Article 3 pertinently provides as follows:
Section 3.1 Right to Participate
Each unit employee has the right to join or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such rights.
Section 3.2 Freedom from Discrimination
The Employer and the Union will not discriminate against an employee because of race, religion, sex, age, national origin, handicap, or because of membership or non-membership in a labor organization.

Concurring Opinion of Chairman Cabaniss:

      I write separately to address an issue not raised by the parties but significantly important enough to discuss. The Arbitrator in this case advised in his decision that the litigation options for the grievants, to challenge their lowered appraisals for having engaged in protected activity, were to either file an unfair labor practice charge or file a grievance alleging a violation of the contract.

      Our Statute provides that unfair labor practice allegations may be raised either as an unfair labor practice charge with the Federal Labor Relations Authority, or as a grievance under the parties' negotiated grievance procedure. 5 U.S.C. §. . .7116(d) and 7123(a)(1). As a result, given the nature of the allegations and the relevant language in the parties' agreement, what might have been a statutory violation case was handled as a contract dispute.

      And, in that regard, our precedent notes that contract provisions mirroring or reflecting certain rights and entitlements established by statute must be interpreted consistent therewith, absent some evidence in the record reflecting that the parties meant the language to have some meaning other than the statutory rights and entitlements reflected. See, e.g., AFGE, Local 507, 58 FLRA 578, 581 (2003) (concurring opinion of Chairman Cabaniss); AFGE, Local 3584, 58 FLRA 473, 475 (2003) (dissenting opinion of Chairman Cabaniss); ACT, Show-Me Army Chapter, 58 FLRA 154, 155 (2002).



Footnote # 1 for 59 FLRA No. 137 - Authority's Decision

   The concurring opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 137 - Authority's Decision

   Because the Union's opposition appeared to be untimely, the Authority issued an order to the Union to show cause why its opposition should be co