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45:0626(54)AR - - Red River Army Depot, Texarkana, TX and NAGE Local R14-52 - - 1992 FLRAdec AR - - v45 p626

[ v45 p626 ]
The decision of the Authority follows:

45 FLRA No. 54










LOCAL R14-52





July 22, 1992


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Lawrence Mann, Jr. filed by the Agency 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 Union filed an opposition to the Agency's exception.

The Arbitrator ordered the performance ratings of eight grievants raised to "exceptional" and directed the Agency to award the grievants any cash awards connected with those ratings. For the following reasons, we conclude that the award is deficient and we will modify the award to require the Agency to reevaluate the grievants to determine their proper ratings.

II. Background and Arbitrator's Award

The Union filed a grievance contesting the "fully successful" performance ratings of eight grievants who were employed as WG-11 machinists. The Union claimed that the Agency had not objectively evaluated the grievants as required by Article XXVII of the parties' collective bargaining agreement.(*)  Award at 2. The Union sought to have the grievants' performance ratings on various critical elements changed from "met" to "exceeded" and their summary ratings raised to "exceptional." Id. at 3.

When the grievance was not resolved, it was submitted to arbitration on the following issue, as framed by the Arbitrator:

Did the Agency violate Article XXVII in the ratings of each of the grievants included in this matter? If so, what shall the remedy be?

Id. at 1.

First, the Arbitrator determined that the Agency did not follow its own published policy of evaluating performance on the basis of objective criteria. The Arbitrator rejected the Agency's argument that it could use "subjective criteria" and found that "where the performance plan is so objective as in this particular case, then the objective criteria must be used." Id. at 6. The Arbitrator found that the disputed ratings were "arbitrary, capricious and unreasonable because they were not supported by any documentation or record of counseling which would reveal any actual performance deficiencies." Id. The Arbitrator also found that "the Agency did not include the employees in the creation of the performance plan, did not sufficiently discuss the individual elements with the employees, did not solicit input from the employees, and did not discuss the individual elements of the performance plan during the [progress] review[]" as required by the parties' agreement. Id.

Second, the Arbitrator found that "[g]rievant after [g]rievant testified that they had exceeded the required goal and the supervisors, almost unanimously, indicated that [the] situation was true." Id. Based on his findings, the Arbitrator ordered the Agency to change the grievants' disputed ratings on the critical elements to "exceeded," to raise their summary ratings to "exceptional," and to remit to them any cash awards connected with those ratings. Id.

III. Agency's Exception

The Agency claims that the award is deficient because the Arbitrator ordered the grievants' ratings raised without determining what the ratings would have been under the established elements and standards. According to the Agency, the Arbitrator failed to meet the second prong of the two-prong test established in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I) and described in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990) (SSA II). The Agency states that the Arbitrator should have "directed the activity to reevaluate the grievants in compliance with the performance evaluation plan." Exception at 4.

IV. Union's Opposition

The Union contends that the Arbitrator properly determined what the grievants' ratings would have been if the performance standards had been correctly applied. The Union claims that the Arbitrator complied with the test established in SSA I and that the Agency's exception is mere disagreement with the Arbitrator's credibility determinations and findings of fact.

V. Analysis and Conclusions

In SSA II, we described the remedial authority of arbitrators in performance appraisal cases. We held, as follows:

First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order managment to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.

SSA II, 34 FLRA at 328.

It is clear, and the Agency does not dispute, that the first prong of the test in SSA II is satisfied. Therefore, the Arbitrator properly sustained the grievance and properly could cancel the grievants' performance ratings.

Nevertheless, we find that the second prong of the required SSA II analysis is not satisfied. The Arbitrator found that "[g]rievant after [g]rievant testified that they had exceeded the required goal and the supervisors, almost unanimously, indicated that the situation was true." Award at 6. However, it is clear that the Agency's performance plans involve multiple critical elements and that each of the eight grievants disputed ratings on different elements. See Opposition at 8-20. Some of the grievants disputed ratings on more than one element. Id. The Arbitrator's finding regarding the grievants' performance relates only to a single, unspecified "required goal," and, as such, does not constitute a proper determination under SSA II of what rating or ratings the grievants' performance would have received if the grievants had been properly appraised. Accordingly, we will set aside that portion of the Arbitrator's award directing the Agency to raise the grievants' performance ratings, and modify the award to require that the Agency reevaluate the grievants to determine what the performance ratings would have been if the Agency had correctly applied the existing elements and standards. See American Federation of Government Employees, Local 2814 and U.S. Department of Transportation, Federal Railroad Administration, Washington, D.C., 43 FLRA 624, 631 (1991).

VI. Decision

The Arbitrator's award is modified to provide: 

The grievance is sustained. The Agency will  reevaluate the grievants for the appraisal period in dispute to determine the ratings the grievants would have been granted had they been appraised as required by the collective bargaining agreement and remit to them any cash award that may be connected with those ratings.

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

*. / Article XXVII of the parties' agreement provides in relevant part:

Section 1. Each employee's performance will be evaluated fairly and objectively and accomplished in accordance with the Employer's published policy.

. . . .

Section 6. Employees will receive cash awards for performance based on a percent of annual salary

. . . .

Award at 5-6.