U.S. Federal Labor Relations Authority

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32:0128(18)AR - - Justice, Federal Bureau of Prisons, Federal Correctional Institution, Fort Worth, TX and AFGE, Council of Prison Locals, Local Union 1298 - - 1988 FLRAdec AR - - v32 p128

[ v32 p128 ]
The decision of the Authority follows:

32 FLRA No. 18










Case No. 0-AR-1448


I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Donald Austin Woolf filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Arbitrator found that the Activity violated the parties' collective bargaining agreement in its performance evaluation of the grievant and directed it to restore $250 to the grievant's sustained superior performance award. For the reasons stated below, we strike the portion of the award directing the Activity to restore $250 to the grievant's award.

II. Background and Arbitrator's Award

The grievant initially received an overall performance evaluation rating of "exceeds" from his supervisor. Because the supervisor was new to her position and inexperienced in giving performance evaluations, she received counseling from the Activity's Associate Warden and Personnel Officer concerning the grievant's evaluation. After the counseling, the supervisor changed two items on the grievant's evaluation from "exceeds" to "fully successful." These changes resulted in an overall rating of "fully successful" for the grievant.

Before the grievant received his initial evaluation, he was nominated by a former supervisor for a Quality Step Increase (QSI). The Activity's Personnel Officer advised the grievant's current supervisor that a QSI was not appropriate for the grievant because of his previous performance evaluations. As a result, the grievant's supervisor did not process the nomination for the QSI further. Instead, when the supervisor received counseling it was suggested that she substitute a Sustained Superior Performance (SSP) award in the $500-$750 range for the QSI award. The supervisor recommended $750. The Activity official with the authority to approve recommended awards approved the award in the amount of $500 for budget reasons.

Thereafter, the grievant filed a grievance alleging that his performance evaluation was in error. The grievance asked that the Activity: (1) correct the grievant's evaluation; (2) grant the QSI; (3) cease the discrimination against him; and (4) require supervisors to keep adequate employee records to aid supervisors in making more accurate annual evaluations.

The grievance was not resolved and the matter was submitted to arbitration. The parties agreed to the following statement of the issue drafted by the Arbitrator:

Did the Agency violate the Agreement or applicable law, rule, or regulation in the performance evaluation of [the grievant] for the period of April 1, 1985 through March 31, 1986, and the utilization of the results of the evaluation? If so, what is the appropriate remedy?

At the arbitration hearing, the Union accepted the Activity's offer to upgrade the grievant's overall performance evaluation to a rating of "excellent." The Arbitrator found that the grievant's revised evaluation did not qualify him for a quality step increase. The Arbitrator determined that there was no evidence of discrimination against the grievant and that the fourth remedy sought (relating to adequate record-keeping) had been granted by the Activity.

The Arbitrator also addressed the Activity's contention that he lacked authority to grant backpay in cases involving special awards. After discussing provisions of the Statute, the Back Pay Act (5 U.S.C. § 5596), and decisions of the Authority, the Arbitrator found that "consideration of performance evaluations, employee awards resulting from such evaluations, and back pay, and awarding 'make whole' remedies as a consequence of such consideration do not exceed" his authority. Arbitrator's Award at 27.

The Arbitrator noted that "[a]mong the arbitral criteria used to assess the appropriateness of a management action are whether the action is arbitrary, capricious, or discriminatory[.]" Arbitrator's Award at 30. He stated that "[t]he reduction of the recommended amount [of the SSP award] appears arbitrary and capricious on its face." Id. The Arbitrator found that the reduction in the amount of the award was for economic reasons unrelated to the grievant's performance, and that absent any evidence to the contrary, "it must be assumed that [the grievant] met the criteria for the higher award." Id.

The Arbitrator found that the Activity violated the parties' agreement in its evaluation of the grievant and he directed the Activity to restore $250 to the grievant's SSP award.

III. Positions of the Parties

The Activity contends that the Arbitrator exceeded his authority by deciding an issue which was not submitted to him and granting a remedy which was not requested in the grievance. It argues that management's action in paying the grievant an SSP cash award in the amount of $500 rather than $750 was not asserted by the grievant to be erroneous.

The Activity also contends that the Arbitrator's award violates the Back Pay Act. The Activity asserts that the personnel action concerned was not unjustified or unwarranted. The Activity also asserts that the additional amount of $250 does not represent pay, allowances or differentials to which the grievant was entitled under law, rule, regulation or the parties' agreement.

The Union did not file an opposition.

IV. Discussion

We conclude that the Activity has failed to establish that the Arbitrator exceeded his authority. The parties agreed to the scope of the issue as formulated by the Arbitrator. The Arbitrator stated the issue as whether the Activity violated the parties' agreement in the evaluation of the grievant and in the utilization of the results of the evaluation and, if so, what would be the appropriate remedy.

After finding that the Activity violated the parties' agreement, the Arbitrator directed the Activity to restore $250 to the SSP award. In our view, the award has not been shown to be outside the scope of the issue before the Arbitrator or otherwise in excess of his authority. See Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516 (1987), where the Authority stated that it will accord an arbitrator's formulation of the issue submitted, in the absence of a stipulation, the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement, and it will permit an arbitrator to extend the award to issues that necessarily arise from the arbitrator's formulation of the issues submitted in absence of a stipulation.

With respect to the Activity's second exception, we agree with the Activity that the award is deficient under the Back Pay Act. In order for an award of backpay to be authorized under the Back Pay Act, an arbitrator must determine that: (1) an aggrieved employee was affected by an unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant would not have suffered the withdrawal or reduction. Overseas Federation of Teachers and Department of Defense Dependents Schools, Mediterranean Region, 26 FLRA 362, 366 (1987).

In this case, the grievant was nominated for an SSP award in the recommended amount of $750. The Activity official with the authority to approve award recommendations approved an award in the amount of $500 because of budget considerations. Nothing in the Arbitrator's award establishes a causal connection between the grievant's improper evaluation and the amount of the SSP award. Rather, as found by the Arbitrator, the determination by the approving official to make the amount of the award $500 was based on budgetary reasons unrelated to the grievant's performance evaluation.

The Authority has held that proposals which establish mandatory performance awards are negotiable. See National Treasury Employees Union, Chapter 245 and Department of Commerce, Patent and Trademark Office, 30 FLRA 1219 (1988). Accordingly, if a collective bargaining agreement provision mandates that an award be given in certain situations and that provision is violated, an arbitrator may order an appropriate monetary remedy consistent with law.

However, in this case the Arbitrator does not cite any provision in the parties' agreement which indicates that the grievant's performance entitles him to an award of $750, nor does the Arbitrator refer to any collective bargaining agreement provision concerning awards generally. Moreover, the Arbitrator has not established that any law, rule, or regulation entitles the grievant to an award in that amount. Thus, the Arbitrator has not demonstrated any connection between his statement that the grievant "met the criteria for the higher award" and any controlling provision of law, rule, regulation, or the parties' agreement, so as to provide a basis for finding that the award is consistent with the requirements of the Back Pay Act.

Therefore, there has been no showing that the grievant would have received an SSP award in the amount of $750 if the Activity had properly evaluated the grievant. Accordingly, the award is deficient and we will strike that portion of the award directing the Activity to restore $250 to the grievant's SSP award.

V. Decision

The award is modified by striking that portion of the award directing the Activity to restore $250 to the grievant's SSP award.

Issued, Washington, D.C.,

Jerry L. Calhoun, Chairman
Jean McKee, Member

(If blank, the decision does not have footnotes.)