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The decision of the Authority follows:
51 FLRA No. 35
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 25, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Justin C. Smith 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 Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator issued an award which, as clarified, sustained a grievance disputing the grievant's annual performance rating and raised the rating to "Excellent." For the following reasons, we conclude that the clarified award is deficient under section 7122(a) of the Statute and we modify it accordingly.
II. Background and Arbitrator's Initial and Clarified Awards
The grievant is employed by the Agency as a Sheet Metal Mechanic. During the relevant performance rating period, the grievant received an overall annual review rating of "Fully Successful." The grievant filed a grievance contesting this rating, claiming that he deserved the highest rating of "Superior." The grievance was denied and was submitted to arbitration.
In his initial award, the Arbitrator stated that the issue before him was whether the grievant's appraisal met the requirements of Article 15 of the parties' Master Labor Agreement (MLA),(1) and "if not, what remedial steps must be taken by the [Agency] to conform to the directives set forth in the [MLA], Performance and Promotion process[?]" Award at 3. The Arbitrator found that the process that the Agency used during the grievant's evaluation period appeared to be "seriously flawed[.]" Id. at 7. The Arbitrator concluded that the Agency, "if not in fact[,] in spirit," violated "the mandates of" the parties' MLA, and ordered the grievant's evaluation raised from "Fully Successful" to "Excellent." Id.
After the Agency filed its exceptions, the Arbitrator issued and mailed to the Authority a "Clarification of Arbitrator's Award" (clarified award). In his clarified award, which the Arbitrator noted was issued pursuant to a request by the Union in which the Agency did not join, the Arbitrator concluded, as he did in his initial award, that the Agency violated Article 15 of the parties' agreement in rating the grievant. Moreover, the Arbitrator concluded that, in rating the grievant, the Agency violated law. Finding that there was sufficient record evidence to determine what the grievant's rating would have been but for the Agency's unlawful conduct, the Arbitrator addressed whether the grievant was appropriately evaluated by the Agency. He noted that the grievant was evaluated on seven primary duties, six of which are critical elements of his position. The Arbitrator stated that, under the Agency's guidelines for performance plans, if an employee "exceeds more than one half of [his or her] critical elements and meets all other elements[,]" the employee will receive an overall rating of "Excellent." Clarified award at 3. With respect to the grievant's ratings in his individual elements, the Arbitrator stated that for at least half of the rating period, the grievant had received "Fully Satisfactory" on five critical elements and "Exceeded" on one critical element and one non-critical element. The Arbitrator concluded that the rating for one critical element should be raised from "Fully Satisfactory" to "Exceeded."
As his clarified award, the Arbitrator issued the following:
But for the Activity's violation of law and the Collective Bargaining Agreement, Grievant would have received an "Exceeded" rating in Job Duty 7. The Grievant's rating in Job Duty 7 must be changed from "Fully Satisfactory" to "Exceeded." Since he exceeds more than one half of the critical elements and meets all other elements [sic](2)
Id. at 6.
III. Exceptions and Parties' Submissions Addressing Clarified Award (3)
The Agency filed exceptions to the initial award claiming that: (1) the Arbitrator exceeded his authority by directing the Agency to give the grievant a higher performance rating than was supported by the record evidence; and (2) the award is contrary to law because 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). In addressing the clarified award, the Agency asserts that it did not violate the parties' agreement or law in appraising the grievant and that the Arbitrator has not provided support for raising the grievant's overall rating to "Excellent."
In its submission to the Authority, the Union contends that the Authority erred in ruling in a previous order in this case that the Agency's exceptions are timely.
V. Analysis and Conclusions
As an initial matter, we find that the Union has not demonstrated that the Authority erred in ruling in an order dated March 31, 1994, that the Agency's exceptions are timely. As indicated in that order, the Agency has furnished the Authority with sufficient evidence to show that its exceptions were timely filed.
In the absence of any contentions by the parties that the Arbitrator was not empowered to issue his clarified award, we find that it is appropriate to consider the clarified award in resolving the Agency's exceptions. For the following reasons, we conclude that the clarified award is deficient as contrary to law and Authority precedent, specifically SSA I and SSA II and cases following those decisions, insofar as it raises the grievant's overall rating from "Fully Successful" to "Excellent" and we modify it accordingly.
It is well established that when an arbitrator finds that management has applied an employee's established elements and standards in violation of, among other things, a properly negotiated provision of the parties' agreement, the arbitrator may cancel the employee's performance appraisal or rating. SSA II, 34 FLRA at 328. If the arbitrator is able to reconstruct the evaluation process so as to be able to determine based on the record what the performance appraisal or rating would have been if management had properly applied the employee's established elements and standards, the arbitrator may order management to grant that appraisal or rating. Id. at 327. If the arbitrator is unable to determine what the rating would have been, he or she must remand the case to management for reevaluation. Id. at 328.
In this case, after finding a violation by management, the Arbitrator directed the Agency to change the grievant's rating in one job element and his overall rating. As to the former, to which no exception has been asserted, the Arbitrator stated that he was awarding the grievant the higher rating he would have received had there been no violation. As to the latter, however, there is no basis in the record to support raising the grievant's overall rating to "Excellent." It is uncontroverted that the grievant would receive an overall rating of "Excellent" only if he is rated "Exceeded" in more than one-half of his critical elements and meets all other elements. The Arbitrator did not find that the grievant should have received a rating of "Exceeded" in more than one-half of his critical elements. Rather, as clarified, the award establishes only that the grievant should have been rated "Exceeded" in only two of his six critical elements.
Consequently, we find that the portion of the award, as clarified, ordering the Agency to raise the grievant's overall rating to "Excellent" is deficient as contrary to law, specifically, section 7106(a)(2)(A) and (B) of the Statute.(4) See Department of the Army, Headquarters, Army Garrison, Fort Ritchie, Maryland and National Federation of Federal Employees, Local 115, 43 FLRA 968, 972 (1992) and case cited therein (award is contrary to section 7106(a)(2)(A) and (B) of the Statute because determination that grievant should receive a higher rating is not based on the record as to what the rating would have been if the grievant had been properly rated).
The Arbitrator's clarified award is modified to provide:
The Grievant's rating in Job Duty 7 must be changed from "Fully Satisfactory" to "Exceeded." The grievant's overall performance rating is "Fully Successful."
Relevant provisions of Article 15 of the parties' Master Labor Agreement, entitled "Employee Performance," state as follows:
Section 15.01, General:
b. This program will be administered without regard to politics, race, color, religion, age, sex, marital status, national origin, or handicapping condition.
Section 15.02, Performance Evaluation:
b. Employees will be given a copy of their performance plan upon entry into a new position or any time changes are made to the performance elements and/or standards. Employees will also receive a copy of their performance plan on an annual basis.
c. The parties recognize performance elements are the significant duties and responsibilities on which employee performance is appraised. They are identified through the analysis of the major job requirements of employees' jobs. Performance elements must be consistent with the level of responsibility and duties of the position description.
e. Performance standards are used to measure the performance of the employee against the elements in the performance plan. A performance standard recognizes the degree of difficulty and reflects the consequences of the work outcome to the organization. The performance standard for each performance element must be defined in measurable terms and be applied in a fair and valid manner.
f. Supervisors will meet with individual employees periodically in the appraisal cycle to discuss the employee's performance, the adequacy of the performance plan, and any changes the supervisor may make to the work plan. Such discussions will be annotated in the employee 971 file for use in the employee's annual performance evaluation. Management will make a sincere effort to assist an employee to maximize their job performance in accordance with their performance plan.
Section 15.05, Performance Problems:
b. The supervisor will help the employee improve performance during the opportunity period. This can include supervisory instruction and counseling, personal demonstration, peer coaching, frequent reporting, special assignments, on-the-job training, etc. Although not required by regulation, formal training may be provided. This training should be given a sufficient high ranking within the appropriate training priorities.
(If blank, the decision does not have footnotes.)
1. The relevant provisions of Article 15 are set forth in the Appendix to this decision.
2. This sentence was not completed in the clarified award. However, it is clear from the initial award that the Arbitrator ordered the Agency to raise the grievant's overall rating from "Fully Successful" to "Excellent."
3. Because the Arbitrator, rather than the parties, mailed the clarified award to the Authority, the Authority directed the parties to file submissions with the Authority addressing what effect, if any, the clarified award had on the continued processing of the case.
4. In light of our conclusion, we find it unnecessary to address the Agency's contention that the Arbitrator exceeded his authority.