45:0631(55)AR - - AFGE Local 3615 and HHS, SSA, Office of Hearings and Appeals - - 1992 FLRAdec AR - - v45 p631

[ v45 p631 ]
The decision of the Authority follows:

45 FLRA No. 55




LOCAL 3615









July 22, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn filed by the Union 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator sustained a grievance contesting the grievant's performance appraisal. The Arbitrator found that the Agency had violated the parties' collective bargaining agreement by improperly evaluating the grievant's performance. The Arbitrator concluded that a declaration stating that the grievant had not been properly appraised was the appropriate remedy.

For the following reasons, we conclude that the Arbitrator's award is deficient under section 7122(a) of the Statute. We will modify the award to require that the Agency reevaluate the grievant.

II. Background and Arbitrator's Award

The grievant is a GS-12 Paralegal Specialist in a division of the Agency's Office of Civil Actions. During the 1990 rating period (October 1, 1989, through September 30, 1990), the grievant also served as a Union steward. The work normally performed by the grievant included analyzing and drafting proposed decisions in Social Security cases in order to determine whether those cases could be defended in court.

From the beginning of the rating period until late February 1990, the grievant performed his normal duties and, for a portion of the workday, worked on a special assignment for the Agency. From March 30, 1990, until the end of the rating period, the grievant worked full-time on a detail to the Office of the Chief Administrative Law Judge (OCALJ). The grievant was not given performance goals and standards and was not rated for his performance on the special assignment or for his performance on the OCALJ detail.

On March 1, 1990, the Agency suspended the use of numeric goals in its performance standards. The parties negotiated a Memorandum of Understanding (MOU) which provided in part that no employee's 1990 appraisal would be adversely affected by the suspension of numeric goals.

The grievant was given an overall rating of "Excellent" for the 1990 rating period. The grievant's performance for the 1990 rating period was rated only on that portion of his work consisting of his normal duties, which constituted "a relatively small percentage of his work" for that period. Award at 6. The grievant's rating of "Excellent" was the lowest rating in the Division among the Paralegal Specialists.

The grievant filed a grievance contesting his rating of "Excellent" and asserting that he should have received the higher rating of "Outstanding." When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue as follows:

Was [g]rievant properly appraised for the period ending September 30, 1990? If not, what shall be the remedy?

Id. at 1.

In support of its position that the grievant was not properly rated, the Union contended before the Arbitrator that: (1) based on anti-Union animus, the Agency violated the MOU by not carrying forward the grievant's "Outstanding" rating on one element in the grievant's performance evaluation for the previous year; (2) because he worked on the most complex, highest priority cases and did so without any unfavorable comments, the grievant performed his work at the "Outstanding" level; and (3) the Agency improperly failed to evaluate the work the grievant performed on a special assignment and on the OCALJ detail, thereby denying him a right to a fair and full evaluation of his work.

The Arbitrator found that the Union had not supported its claim that the grievant's performance rating was based on anti-Union animus or that the Agency had violated the MOU. As to the Union's claim that the Agency should have carried forward the grievant's rating of "Outstanding" in a performance element in his previous year's evaluation, the Arbitrator found that there was no comparable element in the grievant's 1990 performance standards.

The Arbitrator further found that the Union had not demonstrated that the grievant should have been awarded an overall rating of "Outstanding." In this regard, the Arbitrator found that the Union had not demonstrated that the grievant's work was more complex than the work of other Paralegal Specialists or that the grievant's performance of his work without adverse comments justified an "Outstanding" rating. The Arbitrator stated that he was not persuaded that the grievant's performance "was, or can be objectively determined to have been, 'Outstanding.'" Id. at 9.

However, the Arbitrator found that the Agency violated the parties' agreement when it did not rate the grievant's "total or representative performance[,]" including his performance on the special assignment and the OCALJ detail. Id. at 11. The Arbitrator found that the parties' agreement required that: (1) performance standards and elements be consistent with the duties of employees and applied in a fair and reasonable manner; and (2) supervisors evaluate an employee's overall job performance. The Arbitrator also found that the Agency's reasons for not properly evaluating the grievant were inadequate and that "the Agency should bear the consequences of its failure to rate" the grievant. Id. at 10. In this regard, the Arbitrator stated:

Grievant was absent on activity - whether special "down time" assignment, detail, or Union business - which was authorized and protected. The Agency is not within its rights to base its evaluation of [g]rievant on a small percentage of [g]rievant's work, and use his absence on protected activity to make it impossible for [g]rievant to meet the performance standard.

Id. at 11.

With respect to a remedy, the Arbitrator found that it was unlikely that the grievant could be properly evaluated for his performance on the special assignment and the OCALJ detail, "given the absence of the performance plan for those aspects of his work." Id. Further, citing Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I), the Arbitrator stated that he was "not persuaded that there is sufficient evidence in the record from which [he could] determine, in any 'objective, nondiscretionary, essentially mechanistic manner' that [the g]rievant was entitled to a different rating than the one which he received[.]" Id. The Arbitrator noted that, "[a]bsent that ability, the award of a different rating (as the Union requests herein) is not a proper arbitral remedy." Id.

Additionally, the Arbitrator stated that, in view of the circumstances of this case, a remedy remanding the rating to the Agency with instructions to reappraise the grievant's performance in light of the Arbitrator's opinion would be "virtually certain to produce no useful result." Id. at 12. Accordingly, the Arbitrator stated that, even though the Agency's actions resulted in the improper appraisal of the grievant, he was "persuaded that no remedy for the violations committed herein, beyond a declaration, is appropriate." Id.

The Arbitrator made the following award:

The grievance is sustained. Grievant was not properly appraised for the period ending September 30, 1990. For the reasons stated in the Opinion, the remedy is confined to a declaration so stating.


III. Positions of the Parties

A. Union's Exceptions

The Union excepts to the award on the grounds that: (1) the award is contrary to law, rule, and regulation and has no force or effect because the Arbitrator refused to take specific corrective action; (2) the award is contrary to law, rule, and regulation because it contains conflicting findings concerning anti-Union animus; (3) the award denies the grievant appropriate legal relief and the Arbitrator abused his discretion by limiting his remedy to a declaration; (4) the award does not draw a remedy from the parties' agreement or case law, even though the award sustains the grievance; and (5) the Arbitrator violated law and illegally accepted a prohibited Agency personnel practice by refusing to remand the case to the Agency for reappraisal and refusing to rule that the grievant's performance was "Outstanding."

In support of its exceptions, the Union argues that "the Arbitrator's action in merely sustaining the grievance" prevented the grievant from receiving "a proper legal rating for 1990." Exceptions at 3. The Union claims that the Agency's refusal to rate the grievant adversely affects the grievant's 1991 appraisal, promotional opportunities, and protection against reductions-in-force.

The Union also argues that the Arbitrator's failure to find anti-Union animus conflicts with his finding that the Agency used the grievant's protected activity to prevent the grievant from meeting the performance standards. The Union asserts that the Agency "refused to properly rate the grievant for his overall job performance . . . because of his Union activities." Id.

Further, the Union argues that the Arbitrator failed to follow SSA I. According to the Union, the Arbitrator was required "by law to remand this case, with instructions, and . . . could have directed the Agency to remedy the grievance if it was unable to properly appraise the grievant." Id. at 4 (emphasis in original). The Union claims that the Arbitrator's failure to remand this case was arbitrary and capricious.

Finally, the Union claims that even though the award contained "strong" language concerning the Agency's violation of the parties' agreement, the award "did not go far enough . . . ." Id. The Union states that although "the [a]ward 'declares' that the Agency's actions are grossly incorrect, [and] constitute prohibited personnel actions[,] . . . [the award] does not provide a remedy for the grievant." Id. at 5. The Union requests that the Authority remand this case to the Agency with instructions to: (1) rate the grievant as "Outstanding" for the rating period; (2) provide the grievant with an appropriate cash award; and (3) warn the Agency not to engage in "anti-Union bias . . . ." Id.

B. Agency's Opposition

As to the Union's first exception, the Agency contends that the Arbitrator did not act capriciously or unreasonably.

The Agency argues that the award demonstrates that the Arbitrator understood the law and, consistent with SSA I, acted within those constraints. The Agency argues that rather than "refusing to take corrective action, . . . the Arbitrator considered the evidence presented and correctly observed the dilemma of creating evidence and data after the fact[.]" Opposition at 2. According to the Agency, the Arbitrator "methodically reviewed all of his options and selected the one which, in his opinion, best fit the circumstances." Id. (emphasis in original).

The Agency contends that the Union's second exception constitutes nothing more than the Union's attempt to substitute its conclusions for those of the Arbitrator. The Agency argues that the exception merely repeats arguments that were made to and rejected by the Arbitrator. The Agency asserts that the Arbitrator did not find the presence of anti-Union animus and "merely listed [official time] as one of the . . . reasons for [the grievant's] absence from work assignments[.]" Id. at 3.

The Agency contends that the Union's third and fourth exceptions constitute nothing more than the Union's attempt to substitute its choice of a remedy for that of the Arbitrator. The Agency argues that "[d]eclaration awards are a recognized remedy and can be appropriate when nothing else seems to fit." Id. at 5. The Agency also argues that fashioning an appropriate remedy that is based upon the specific facts of a case is a matter that is within the Arbitrator's discretion and authority. The Agency asserts that even if an arbitrator finds that an agency violated the parties' agreement, an arbitrator is not required to provide any remedy.

The Agency contends that the record does not support the Union's fifth exception. According to the Agency, the Union's argument that the award constitutes a prohibited personnel practice is not supported by the record, was not raised before the Arbitrator, and is not relevant to this case.

IV. Analysis and Conclusions

We conclude that the award is deficient as contrary to law because it is contrary to SSA I, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (SSA II), and the cases that follow those decisions. We find that the Arbitrator improperly applied the second prong of the test established in SSA I and described in SSA II, which defines the approach that arbitrators will use when examining an agency's application of performance standards.

In SSA II, we described the two-prong test 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 management