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53:1743(155)AR - - VA Medical Center, Northhampton, MA and NAGE Local R1-107 - - 1998 FLRAdec AR - - v53 p1743

[ v53 p1743 ]
The decision of the Authority follows:

53 FLRA No. 155










LOCAL R1-107





March 31, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Samuel J. Nicholas, 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance challenging the grievant's performance rating and ordered the Agency to raise the grievant's rating. For the reasons that follow, we hold that the award is deficient because it is contrary to management's rights set out in section 7106(a)(2) of the Statute.

II. Background and Arbitrator's Award

Under the Agency's rating system, employees such as the grievant are rated on six job elements. The grievant was rated "exceptional" in four categories and "fully successful" in two categories, resulting in a summary rating of "fully successful." He grieved this appraisal.

The Arbitrator concluded that the grievant "demonstrated performance beyond the standards" in the two categories where he was rated "fully successful" and that he should have received an "exceptional" rating in those two areas. Award at 12. The Arbitrator also concluded that the Agency committed two procedural "defects" in the rating process, but that these defects were not "sufficient for being recognized as 'prohibited personnel practice[s].'" Id.

The Arbitrator directed that the grievant's rating be changed to "exceptional" in the two disputed areas and that his overall rating be changed to "outstanding."

III. Positions of the Parties

A. Agency's Exceptions

The Agency argues that the award is contrary to section 7106(a) of the Statute because it impermissibly affects management's rights to direct employees and assign work. U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146 (1997) (BEP). The Agency asserts that the Arbitrator failed to identify a violation of an applicable law or contract provision committed by the Agency that affected the rating. Id.

The Agency argues that the Arbitrator's findings of "defects" in the rating process do not constitute findings that it violated an applicable law, regulation, or contract and therefore, do not provide a basis for canceling the grievant's performance rating. Exceptions at 3. In addition, the Agency asserts, even if its actions could be considered violations of applicable law or regulation, the Arbitrator did not find that the grievant's rating was affected by any violation.

The Agency also argues that the award is based on a nonfact because the Arbitrator erroneously characterized its actions as defects. In addition, the Agency argues that the award fails to draw its essence from Article 25, Section 2 of the parties' bargaining agreement,(1) because the Arbitrator erroneously substituted a subjective standard of "fairness and reasonableness" for the objective standard contained in that provision. Id. at 4.

B. Union's Opposition

The Union argues that the Arbitrator complied with Article 25, Section 2 of the contract. According to the Union, the Arbitrator analyzed the Agency's action to determine "whether the performance appraisal process as applied to this grievant was fair and reasonable." The Union asserts that this analysis was a finding that the Agency had violated Article 25. The Union further argues that the Arbitrator agreed with the Union's arguments concerning procedural defects, and that the Arbitrator accepted those procedural arguments "in conjunction with but secondary to the substantive issues." Id. at 2-3.

IV. Analysis and Conclusions

In BEP, the Authority applied a two-prong test to determine whether an arbitration award that implicates management's rights set out in section 7106(a)(2) of the Statute is deficient as contrary to those rights. First, an arbitrator must be enforcing either applicable law, within the meaning of section 7106(a)(2), or a contract provision that was negotiated pursuant to the exceptions to section 7106(a) that are set forth in section 7106(b). Second, the award must constitute a reconstruction of what management would have done had management acted properly. Id. at 152-53.

In this case, the Arbitrator concluded that the Agency committed "defects" in the rating process, as discussed above, and failed to take into account the grievant's contributions with respect to the two elements where the Agency rated the grievant "fully successful." The Arbitrator did not explicitly link his findings with the Agency's violation of any law or provision of the parties' agreement, as required by prong I of the BEP test.(2)

In reaching this conclusion, we reject the Union's contention that the Arbitrator found a violation of the Article 25 requirement that the appraisal be objective. That contention is not supported by the language of the decision. The Arbitrator did not cite Article 25, and did not find that the Agency failed to make an objective evaluation of the grievant's performance. Instead, the Arbitrator stated that the issue was whether the grievant's appraisal was "reasonable, fair, consistent with past practice and free of procedural defects[.]" Award at 11.

The award does not reveal a conclusion by the Arbitrator that the appraisal was not objective within the meaning of Article 25, Section 2. Accordingly, because the Arbitrator did not find a violation of a contract provision on a section 7106(b) matter, the award fails to satisfy prong I of BEP.(3)

As the award fails to satisfy prong I of BEP, we find that the award is contrary to law under section 7122(a)(1) of the Statute.(4)

V. Decision

The Agency's exception is granted.

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

1. Article 25, Section 2 provides:

The intent of the performance appraisal system will be to provide an objective evaluation of the employee's performance based on an analysis of the employee's performance as compared to the established performance standards for the position.

2. Even if the "defect" were found to violate the contract or applicable law, there was no finding by the Arbitrator that the grievant's rating was affected by such a violation, as is required by prong I of BEP. See 53 FLRA at 153.

3. Given this result, it is not necessary for us to consider the second prong of the BEP test.

4. Because we resolve the case on this ground, it is unnecessary to consider the Agency's other exceptions to the award.