United States, Department of Health and Human Services, Health Resources, Services Administration, Rockville, Maryland (Agency) and National Treasury Employees Union (Union)

[ v60 p118 ]

60 FLRA No. 27

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
HEALTH RESOURCES
SERVICES ADMINISTRATION
ROCKVILLE, MARYLAND
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-3796

_____

DECISION

August 10, 2004

_____

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 an exception to an award of Arbitrator Charles E. Donegan 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 exception.

      The Arbitrator sustained a grievance alleging that the Agency violated the parties' agreement in rating the grievant fully successful. As a remedy, he reinstated the grievant's rating of excellent from the previous year. The Agency excepts only to the remedy. For the reasons discussed below, we find that the remedy is deficient and modify the award.

II.     Background and Arbitrator's Award

      In November 2001, the grievant was detailed to a different branch of the Agency and began working under a different supervisor. The grievant was permanently reassigned to that position in early 2002. The grievant's new supervisor rated her fully successful for the appraisal period from December 10, 2001 to September 30, 2002. The grievant filed a grievance challenging her appraisal.

      The matter was submitted to arbitration and the parties agreed to the following issue: "[D]id Management breach law, rule, regulation or contractual provision when it rated the [g]rievant fully successful? What should the remedy be?" Award at 3. [n1] 

      The Arbitrator found that there was no documentation that the grievant had received either periodic reviews or a mid-year review as required by the parties' agreement. [n2]  The Arbitrator also found that the Agency violated the parties' agreement by failing to give the grievant her performance standards before the rating period had ended. As such, the Arbitrator found that "there was no way during the appraisal period for [the grievant] to know how to perform or what jobs were important because the standards were not communicated to her until after the performance period was completed." Id. at 44. In addition, the Arbitrator found that the grievant's new performance standards "differed significantly" from those for her previous position. Id. The Arbitrator also found that the grievant's rating of fully successful was not, as the Agency alleged, the result of "inaccurate work based on her alleged attitude, anger, and resentment towards her new supervisor[.]" Id. at 46. Rather, the Arbitrator found that the grievant's rating "was primarily based on the fact that [m]anagement did not provide her with the proper performance standards for the rating period in question." Id.

      The Arbitrator also found that union animus "played at least some part" in the grievant's rating and that there was "sufficient evidence to raise a real possibility that [she] received a `Fully Successful' instead of an `Excellent' evaluation at least in part because she had been a union steward." Id. at 48, 43.

      The Arbitrator concluded that the Agency did not apply established performance standards in rating the grievant's performance and "rescinded" the grievant's rating of fully successful. Id. at 45. The Arbitrator declared that he was "unable to determine based on the record what the [g]rievant's rating would have been if the correct standard had been applied[,]" and, "[t]herefore," he ordered that the grievant's higher rating of excellent from the previous year be reinstated. Id. In the Arbitrator's view, this was "the fair remedy" and "is the fairest possible decision under the facts and circumstances of this case." Id. at 45, 48. The Arbitrator also ordered that the grievant be made whole for any performance [ v60 p119 ] award she would have received, but for the Agency's violation of the agreement.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency argues that the award is deficient because the remedy is contrary to law. In this regard, the Agency asserts that the Arbitrator overstepped his remedial authority in ordering the grievant's previous rating reinstated because, by his own admission, he was unable to reconstruct how the Agency would have rated the grievant absent a violation of the parties' agreement. In this connection, the Agency asserts that where an arbitrator has ordered the raising of a grievant's rating without any evidence in the award that the arbitrator was able to reconstruct how the agency would have rated the grievant absent a violation of law or a collective bargaining agreement, the Authority has modified those awards to require the agency -- and not the arbitrator -- to reevaluate the grievant. In support, the Agency cites United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 154 (1997) (BEP) and Soc. Sec. Admin., 30 FLRA 1156, 1160-61 (1988), among other cases.

      The Agency also distinguishes United States Dep't of Def., Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 54 FLRA 487 (1998), in which the Authority upheld an arbitrator's substitution of a grievant's prior rating. According to the Agency, in that case the arbitrator was able to reconstruct what the grievant's performance rating would have been. Here, the Agency argues in contrast, the Arbitrator admitted that he was unable to do so. See Exception at 5-6 n.4.

B.     Union's Opposition

      The Union asserts that the Agency's reliance on BEP is misplaced because the Arbitrator's findings were not intended to satisfy the first prong of BEP, but instead reflect that, by its "failure to act," the Agency "had corrupted the appraisal process entirely." Opposition at 4. The Union also contends that any rating given to the grievant by the Agency would be arbitrary and capricious because there were no established performance standards and, as such, the Agency "made it impossible for the [g]rievant's performance during the rating year to be measured." Id. at 5.

      According to the Union, the Arbitrator's award was an appropriate remedy because it was intended to return the grievant "to the place where she was prior to management's corruption of the appraisal process." Id. However, if the Authority were to find the award deficient, the Union argues that the Authority should remand the case to the parties "for further action." Id. While not specifying what that further action may be, the Union argues that this case "differs from" United States Dep't of the Air Force, Air Force Materiel Command, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 59 FLRA 14 (2003) (Air Force Materiel Command) (Chairman Cabaniss dissenting), in which the Authority ordered that an appraisal period be extended. Opposition at 5. The Union asserts that, as the Arbitrator cancelled the grievant's disputed rating in this case, an extended appraisal "would still leave a gap in the grievant's appraisal scores." Id. at 6.

IV.     Analysis and Conclusions

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). 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. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Where a party challenges an arbitrator's cancellation of a performance rating and the arbitrator's substitution of a specific performance rating in its place, the Authority applies the two-prong test set forth in BEP. Under prong I of BEP, the Authority examines whether the award provides a remedy for a violation of either an 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. See BEP, 53 FLRA at 153. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done had it not violated the law or contractual provision at issue. See id. at 154.

      The Agency argues only that the Arbitrator's remedy is deficient because it does not reflect a reconstruction of what the Agency would have done had it not violated the parties' agreement. Accordingly, we assume prong I is met and address only whether the award is deficient under prong II of BEP. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Detention Ctr., Miami, Fla., 57 FLRA 677, 679 (2002); United States Dep't of the Navy, Naval Undersea Warfare Ctr. Div., Keyport, Wash., 55 FLRA 884, 887 (1999).

      The Authority previously has held that where an arbitrator cancels a performance rating and orders management [ v60 p120 ] 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. See, e.g., United States Dep't of the Air Force, Wright-Patterson Air Force Base, Ohio, 58 FLRA 145, 147 (2002) (Chairman Cabaniss dissenting on other grounds) (Wright-Patterson). Consistent with this requirement, in order to raise a rating, an arbitrator must find that "the record support[s] raising the grievant's ratings." Wright-Patterson, 58 FLRA at 147 (citation omitted).

      In addition, the Authority has held, citing applicable government-wide regulations at 5 C.F.R. Part 430, that in the absence of a "valid performance plan for the grievant's position, [an] award raising the grievant's performance rating cannot reconstruct what management would have done had it used the proper performance plan." Air Force Materiel Command, 59 FLRA at 15. As relevant here, the Authority stated that "§ 430.208 requires all ratings of record to be based upon an evaluation of an employee's actual job performance measured against the critical and non-critical performance elements identified in the applicable performance plan." Id.

      In this case, the Arbitrator did not state, and the record does not otherwise indicate, that the award reinstating the grievant's previous higher rating was based on a finding by the Arbitrator as to how the Agency would have rated the grievant's performance had it not violated the parties' agreement. Indeed, based on the finding that a valid performance plan was not given to the grievant until after the appraisal period had ended, it would not have been possible for the Arbitrator to rate the grievant's performance against the established standards and elements. Moreover, the Arbitrator specifically stated that he was unable to determine what the grievant's rating would have been if the correct standard had been applied; the Arbitrator simply reinstated the grievant's prior rating of record based on what the Arbitrator viewed to be "the fair remedy . . . ." Award at 45.

      Consistent with Authority precedent, we find that the Arbitrator's award reinstating the grievant's previous rating does not reflect a reconstruction of what management would have done had it not violated the parties' agreement. Consequently, we find the remedy portion of the award deficient. See Wright-Patterson, 58 FLRA at 147.

      Where, as here, an award raising a grievant's performance appraisal is found deficient, but the finding that the agency failed to properly appraise the grievant is left intact, the Authority's longstanding practice is to modify the award to provide for an appropriate remedy. See, e.g., Air Force Materiel Command, 59 FLRA at 15; United States Dep't of Def., Def. Logistics Agency, Def. Contract Mgmt. Command, Def. Contract Mgmt. Area Ops. Boston, Boston, Mass., 53 FLRA 210 (1997) (DoD Boston). In this case, we modify the award to strike the portions that direct the Agency to rescind the grievant's rating of fully successful and to reinstate the grievant's previous rating of excellent. We direct the Agency to properly reevaluate the grievant in accordance with the parties' agreement and applicable regulations. [n3]  See, e.g., Wright-Patterson, 58 FLRA at 147; DoD Boston, 53 FLRA at 217; United States Dep't of Veterans Affairs Med. Ctr., Baltimore, Md., 53 FLRA 190, 195 (1997).

V.     Decision

      We modify the award to strike the portions that: (1) direct the Agency to rescind the grievant's rating of fully successful, and (2) reinstate the grievant's previous rating of excellent. The Agency is directed to properly reevaluate the grievant in accordance with the parties' agreement and applicable regulations. [ v60 p121 ]


APPENDIX

Article 43, § 2(B) of the parties' agreement provides:

Performance plans consist of job elements (including one or more critical elements) and performance standards. The Union recognizes that the laws and regulations provide the Employer the right to establish performance expectations.

Exception, Attachment E, Jt. Exh. 1 at 122.

Article 43, § 3(A)(9)(b) of the parties' agreement provides:

If a plan is revised to include new elements and standards, they become effective at the time they are finalized and given to the employee. The employee will not be rated on an entirely new element that has been less than 120 days or on an element that has been deleted before being in effect for 120 days.

Id. at 126. [n4] 

Article 43, § 5(A) of the parties' agreement provides:

To the extent feasible, appraisals of performance will be fair and accurate and related to specific, written performance requirements. Employees will be measured against the established performance expectations based on observable performance.

Id. at 127.

Article 43, § 5(H) of the parties' agreement provides:

If an employee would otherwise be unratable for an appraisal year, the appraisal period must be extended until 120 days are reached, and a rating of record must be prepared at the end of the extended appraisal period. The appraisal period must not be extended if any rating was made earlier in the appraisal year for another position.

Id.

Article 43, § 5(O) of the parties' agreement provides:

Employees will be kept informed of performance expectations and their general performance on an ongoing basis. While the number of progress reviews may vary, there will be at least one documented progress review approximately midpoint in the employee's appraisal cycle. The progress review will clearly state how the employee is performing, with particular emphasis on how performance can be improved, if needed.

Id. at 129.



Footnote # 1 for 60 FLRA No. 27 - Authority's Decision

   The Arbitrator also found that the grievance had been timely filed. As the Agency has not excepted to this finding, we do not address it.


Footnote # 2 for 60 FLRA No. 27 - Authority's Decision

   The relevant provisions of the parties' agreement are set forth in the attached appendix.


Footnote # 3 for 60 FLRA No. 27 - Authority's Decision

   The Union requests that the Authority remand this case to the parties for unspecified "further action" based on the Union's view that an extension of the appraisal period would leave the grievant without an evaluation during the disputed rating period. Opposition at 5. In directing the Agency to reevaluate the grievant, the Agency must adhere to the requirements of the parties' agreement and applicable regulations in determining the appropriate time period that the new appraisal will cover. See Air Force Materiel Command, 59 FLRA at 15, and cases cited therein.


Footnote # 4 for 60