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47:0916(86)AR - - Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1993 FLRAdec AR - - v47 p916

[ v47 p916 ]
The decision of the Authority follows:

47 FLRA No. 86










LOCAL 1592





June 16, 1993


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 Thomas Angelo 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 did not file an opposition to the Agency's exceptions.

The Arbitrator sustained, in part, the grievance of an employee who received ratings of "Met" in two elements of his performance appraisal. The Arbitrator ordered that the rating in Element 1 be raised to "Exceeds." In addition, he ordered that the record be reopened to determine whether the rating in Element 5 should be raised to "Exceeds" based on the application of one of the standards in Element 5 to other employees. The Agency excepts only to the part of the award ordering the reopening of the record to examine the Agency's treatment of other similarly situated employees and the raising of the grievant's rating in Element 5 if the Agency's treatment of the grievant was inconsistent with its appraisals of those employees.

For the reasons set forth below, we conclude that the part of the award that is the subject of the exceptions is deficient. Accordingly, we shall set aside that portion of the award.

II. Background and Arbitrator's Award

The grievant was given a performance appraisal rating for the period July 1, 1991 to June 30, 1992. He was rated as having "Met" the standards in Elements 1 and 5, both of which were critical elements, and "Exceeded" the standard on the remaining three elements, one of which was not critical.

The grievant is a machinist who performs much of his work outside of the direct observation of his supervisor. He also served as a Union Chief Steward during the rating period. Due to reductions in force the grievant was supervised by several different individuals during the rating period. The performance appraisal was done by Johnny Loftus, the grievant's second level supervisor, who had been his "supervisor of record" since April 1992. Award at 3. Loftus rated the grievant based on his own knowledge, a review of the grievant's quarterly reports, and some limited discussions with the individual who had supervised the grievant between November 1991 and April 1992. Each of the critical elements contains several performance standards. The standards were not weighted equally. Rather, the standards were weighted differently, but the grievant was not advised of that fact. Nor was he informed how performance at the "Exceeded" level on Elements 1 and 5 was measured. When the grievance filed over the performance appraisal was not resolved, it was submitted to arbitration.

Critical Element 5 states, "Complies with all shop policies and regulations." Award at 4. Before the Arbitrator, the Agency stated that the Agency gives the most weight to Standard 5Sa in determining a rating for Element 5. That standard provides for the establishment of "good working habits" regarding "starting, quitting, and break times." Id. In this regard, the record shows that during the rating period, the grievant received an oral admonishment for taking an unscheduled lunch. Other employees who accompanied the grievant also received oral admonishments for the same reason. The Agency asserted before the Arbitrator that discipline for failing to adhere to scheduled lunch periods is a bar to an "Exceeded" rating on Element 5.

The Arbitrator reviewed the Agency's application of standard 5Sa, and concluded that the Agency's position was "reasonable" and that the rating in Element 5 would be "adopted" by the Arbitrator subject to one condition. Id. at 12. The Arbitrator directed that the record be reopened to determine the ratings given the other employees who were disciplined when they accompanied the grievant on the unscheduled lunch. The Arbitrator determined that if any of those employees were rated under a critical element and performance standard substantially similar to 5Sa, and any received an "Exceeded" rating in the similar element despite the disciplinary action, the Agency would be required to raise the grievant's rating. Conversely, if the Agency's treatment of the grievant was consistent with its treatment of the others, the grievant's rating would remain unchanged. With regard to this portion of the award, the Arbitrator stated,

I fully agree with the Agency when it argues that employees must be compared to the applicable Performance Standard and not one another. However, it is equally true that the application of the Standard must be uniform, and reopening the record to determine how prior discipline is considered under Standard 5Sa is therefore appropriate.

Id. at 13 n.13.

III. Exceptions

The Agency argues that the part of the award ordering that the record be reopened and the grievant's rating on Element 5 be adjusted under certain circumstances is deficient on several grounds. First, the Agency argues that the award is contrary to 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), because the Arbitrator did not find that the Agency violated law, regulation or the collective bargaining agreement in rating the grievant on performance Standard 5Sa. The Agency contends that the award does not meet the first prong of the two-prong test set out by the Authority in SSA II because the Arbitrator "neither made a finding that management failed to apply this performance standard nor that such standard was applied in a manner that violated law, regulation, or the parties' collective bargaining agreement." Exceptions at 3.

Next, the Agency contends that the award is contrary to Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988)(SSA I) and Newark Air Force Station and American Federation of Government Employees Local 2221, 30 FLRA 616 (1987), because, it asserts, the Arbitrator has established a new standard. The Agency argues that the award would require management to compare ratings of employees who happen to have the same performance plan, which would be "very destructive of the basic principle that employees are rated on their own demonstrated performance." Exceptions at 4.

Finally, the Agency argues that the award is deficient because, contrary to 5 C.F.R. § 430.204(d)(1) and 5 C.F.R. § 430.206(d), it does not base the rating on a comparison of performance with established standards and it does not base an "Exceeded" rating solely on work that exceeds normal expectations.(1) The language of 5 C.F.R § 430.204(d)(1), the Agency argues, "limits [the Arbitrator's] review to a comparison of demonstrated work performance against established standards." Exceptions at 4. Further, the Agency asserts that the Arbitrator's approach "would require a distribution of ratings based on consistency or comparability among and between employees[,]" id., and, therefore, violates § 430.206(d).

IV. Analysis and Conclusions

In SSA I, the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. Subsequently, in SSA II, we described SSA I as "establish[ing] a two-prong test." We explained the 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 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.

In this case, the Arbitrator did not find that the Agency had violated law, regulation, or a provision of the parties' collective bargaining agreement in appraising the grievant as to Element 5.(2) Further, he did not find that the Agency failed to apply the established performance standard. In fact, the Arbitrator specifically found the Agency's application of the standard to be "reasonable." Award at 12. Even if it were established that the grievant was the subject of inconsistent treatment, the award contains no explanation of why such inconsistent treatment would violate law, regulation or a provision of the collective bargaining agreement.(3) Therefore, the Arbitrator has not established a basis on which to cancel the rating in Element 5. Consequently, by directing the Agency to adjust the grievant's rating if his treatment was inconsistent with that of other employees, the award is contrary to management's rights under § 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 2006, 35 FLRA 931 (1990). See also U.S. Department of Veterans Affairs, Olin E. Teague Medical Center, Temple, Texas and American Federation of Government Employees, Local 2109, 41 FLRA 649 (1991).

V. Decision

The portion of the Arbitrator's award that is the subject of the exceptions is set aside.

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

1. 5 C.F.R. § 430.204(d)(1) provides, in pertinent part,

Each appraisal system shall provide for . . . appraising employees based on a comparison of performance with the standards established for the appraisal period.

5 C.F.R. § 430.206.(d) provides, in pertinent part,

[O]nly those employees whose performance exceeds normal expectations are rated at levels above Fully Successful.

2. The Arbitrator found that the grievant's rating for Element 1 was adversely affected by his protected Union activity. However, the Arbitrator made no such finding as to the Agency's rating of the grievant for Element 5. Therefore, no inquiry into disparate treatment for Union activity is warranted in reviewing the award as to Element 5.

3. Although the Arbitrator may be correct in stating that "application of the standard must be uniform," Award at 13 n.13, uniformity in application would not guarantee that the established standards have been properly applied or that their application as to the grievant did not violate law, regulation or the collective bargaining agreement. Indeed, a standard could be applied uniformly but incorrectly, thus resulting in improper evaluation of all employees subject to the same standards. On the other hand, although inconsistent application of a standard would guarantee that the evaluation would be faulty as to some in the group, that analysis, without more, would not indicate which employees were subjected to the incorrect application of the standard.