United States, Department of the Air Force, Ogden Air Logistics Command, Hill Air Force Base, Utah (Agency) and American Federation of Government Employees, Local 1592 (Union)

[ v61 p648 ]

61 FLRA No. 128

UNITED STATES
DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS COMMAND
HILL AIR FORCE BASE, UTAH
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1592
(Union)

0-AR-4059

_____

DECISION

August 4, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Daniel M. Winograd 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 found that the grievant's 2004/2005 performance appraisal was improperly lowered from previous years. As a remedy, the Arbitrator ordered the Agency to raise the grievant's rating. For the following reasons, we remand the award for clarification.

II.     Background and Arbitrator's Award

      The grievant, a registered nurse, received an overall performance rating of 66 for the 2004/2005 performance year, as compared to the score of 80 she received on each of her prior two ratings. The grievant filed a grievance challenging the appraisal on the ground that her lowered performance appraisal was in retaliation for her protected union activity. The grievance was unresolved and was submitted to arbitration on the following stipulated issues: "Was the grievant's 2004/2005 Civilian Appraisal accomplished in accordance with applicable law and negotiated labor contracts/agreements? If not, what should the rating be?" Award at 2.

      The Arbitrator found that the supervisor held several feedback sessions with the grievant during the performance year, during which the supervisor addressed the grievant's "tendency to discuss concerns about procedures, scheduling and operations with individuals who were outside her chain of command, rather than speak to" the supervisor. Id. at 6. According to the Arbitrator, the grievant is "outspoken, self-confident and assertive" and "is not schooled in the concepts of military discipline[,]" whereas the supervisor "is trained in . . . military discipline . . . is a firm believer in the `chain of command' and [is of] the view that subordinates should not openly disagree with or dissent from orders, suggestions or actions proposed by superior officers." Id. at 7-8. As such, the Arbitrator concluded that the grievant's performance appraisal was "significantly influenced by a personality clash between [the] grievant and" her supervisor. Id. at 7. The Arbitrator also found that the grievant's "tendency to exercise" her right to "discuss problems with the Union and with persons outside the chain of command . . . was [the supervisor's] basis to rate [the] grievant relatively poorly . . . ." Id. at 9. The Arbitrator, however, acknowledged that the grievant had "demonstrated behaviors which render her performance less than outstanding." Id. Based on the foregoing, the Arbitrator considered the ratings, which the grievant had received on nine performance factors, and he concluded that the ratings on four of the nine performance factors should be raised. Therefore, as his award, the Arbitrator ordered that the grievant's ratings be raised, and he left the other ratings intact, thus increasing the grievant's overall rating from 66 to 71.

III.      Positions of the Parties

A.      Agency's Exceptions

      Citing the Authority's framework in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP), the Agency claims that the award is deficient because the Arbitrator failed to "tie his award to specific provisions" of the agreement, in violation of the Agency's right to assign work. See id. at 4-5. The Agency also asserts that the grievant's rating was proper under section 15.06 of the parties' agreement because it was "reasonably consistent with her work product and skills." [*]  Exceptions at 4. In addition, the Agency asserts that "the [A]rbitrator erred in substituting his own arbitrary judgment for that of the [A]gency . . . ." Id. at 4. In this connection, citing United States Dep't of the Air Force, Wright-Patterson Air Force Base, Ohio, 58 FLRA 145 (2002), the Agency argues that the remedy does not reconstruct "what the grievant's rating would have been if the [A]gency had properly appraised the grievant." Id. at 5. [ v61 p649 ]

B.      Union's Opposition

      According to the Union, the evidence and testimony that the Arbitrator considered "clearly determined that [the] grievant's performance ratings were directly influenced by her Union-related activity and by a `personality clash[]' having nothing to do with the grievant's ability to perform her job successfully." Opposition at 1-2. In this connection, the Union asserts that the Arbitrator was not required to use "magic words." Id. at 2. According to the Union, the Arbitrator's findings establish an "unfair labor practice and/or prohibited personnel practice, even though [he] did not cite to the specific laws containing those prohibitions." Id.

IV.      Analysis and Conclusions

      The Agency argues that the award violates management's right to assign work. 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 the 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 DOD, 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.

      When an exception alleges that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999) (SBA). If it does, the Authority applies the framework established in BEP, 53 FLRA at 151-54. Under prong I of this framework, 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 id. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done had it not violated the law or contractual provision at issue. See id.

      Longstanding Authority precedent supports the Agency's claim that the award affects its right to assign work under § 7106(a)(2)(B) of the Statute. In this regard, the Authority has held that an arbitrator's cancellation of a grievant's rating under an established performance appraisal system affects management's right to assign work. See BEP, 53 FLRA at 154.

      To apply the BEP analysis, it is essential to identify the law or contract provision that the arbitrator found violated. See United States Dep't of Veterans Affairs, Med. Ctr., Detroit, Mich., 60 FLRA 306, 309-10 (2004) (citing United States Dep't of the Navy, Supervisor of Shipbuilding, Conversion & Repair, Newport News, Va., 56 FLRA 339, 343 (2000) (Dep't of Navy) (Chairman Wasserman dissenting), decision after remand, 57 FLRA 36 (2001) (Chairman Cabaniss dissenting in part)); SBA, 55 FLRA at 184; United States DOD, Def. Logistics Agency, Def. Distrib. Depot, Norfolk, Va., 54 FLRA 180, 184 (1998) (DOD) (Member Wasserman dissenting) (Dep't of Veterans Affairs)). If the Authority is unable to determine which contract provision or law was found violated, then the Authority will remand the matter to the parties for resubmission to the arbitrator, absent settlement, for clarification. See id. (citing Dep't of Navy, 56 FLRA at 344; SBA, 55 FLRA at 185; DOD, 54 FLRA at 184).

      The Agency asserts that the Arbitrator failed to specify the contract provision that he was enforcing and claims that its actions were consistent with section 15.06 of the parties' agreement. The Union responds that the award amounts to a finding that the appraisal was unlawful because it was based on the grievant's Union activities. However, a review of the award supports the Agency's claim that the Arbitrator failed to identify what contract provision, if any, he was enforcing. In addition, the Arbitrator did not identify any law that he was enforcing. In this connection, although the Arbitrator framed the issue in terms of the appraisal's consistency with "applicable law" and the "negotiated labor contracts/agreements[,]" he did not refer to any particular laws or contract provisions. Award at 2. Rather, the Arbitrator found the appraisal improper because it was based on "a personality clash" between the gr