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The decision of the Authority follows:
54 FLRA No. 49
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
June 29, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Mark J. Keppler 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 exception.
The Arbitrator sustained a grievance alleging that the Agency failed to appraise the grievant's performance in accordance with the parties' collective bargaining agreement. The Arbitrator ordered the Agency to raise the grievant's appraisal rating and compensate the grievant for any monetary awards the grievant would have otherwise received as a result of the higher rating.
For the reasons that follow, we conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exception.
II. Background and Arbitrator's Award
The Union filed a grievance disputing the grievant's performance ratings on three job elements (Elements 3, 4, and 5). At Step 2 of the negotiated grievance procedure, the Agency conceded that "there were violations with the way [the] [g]rievant's appraisal" concerning Element 4 was accomplished, and the Agency raised the grievant's Element 4 evaluation to "exceed." Brief to Exception at 1. After the grievance procedure proved unsuccessful with regard to Elements 3 and 5, the Union invoked expedited arbitration.
At arbitration, the parties stipulated the issue as follows:
Was the [g]rievant's . . . Rating . . . accomplished in accordance with law, rule[,] regulation, and/or appropriate provisions of the Master Labor Agreement or its Local Supplement, and applicable case law, and if not, what should the rating be?
Award at 3. The parties further stipulated that the Arbitrator would be governed by the two-pronged test set forth in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA).
The Arbitrator found that the Union satisfied prong I of the SSA test because "the parties specifically stipulated that '[m]anagement applied the grievant's performance standards in violation of the [collective bargaining agreement.]'" Award at 9. The Arbitrator consequently canceled the grievant's appraisal with respect to Elements 3 and 5.(1)
The Arbitrator stated that, with regard to prong II of the SSA test, the "key question is whether there was sufficient evidence to determine what a grievant's rating would have been had there been no violation." Id. For the following three reasons, the Arbitrator concluded that the Union presented sufficient evidence that the Agency would have rated the grievant as "exceeded" on Element 5 if there had been no violation.
First, the Arbitrator determined that the grievant had received an "exceeded" rating for Element 5 on each of his two previous performance appraisals. The Arbitrator stated that this fact, standing alone, would not justify substituting the grievant's previous rating. However, the Arbitrator also stated that a lower rating should be upheld only if it was based on reasonable standards that were (1) adequately communicated to the grievant, and (2) supported by sufficient documentation. The Arbitrator determined that, in this case, "the standards were not adequately communicated to the [g]rievant and [the supervisor's] evaluation of the [g]rievant's declining performance was not documented sufficiently." Award at 10. The Arbitrator thus concluded that there was "no acceptable rationale for [the supervisor's] decision to lower the [g]rievant's ratings from the previous year." Id.
Second, the Arbitrator determined that one of the factors that the Agency considers in evaluating performance under Element 5 is whether the employee has made any approved suggestions during the rating cycle.(2) The Arbitrator determined that the grievant had made three suggestions that were approved during the rating cycle, and that the grievant's supervisor had not given the grievant credit for those suggestions when he rated the grievant with respect to Element 5. The Arbitrator noted the grievant's supervisor's testimony that none of the employees rated as "exceeded" on Element 5 had submitted as many approved employee suggestions during the rating cycle, and the Arbitrator found that, "[a]s a result, it is possible to 'objective[ly] . . . and [in an] essentially mechanistic manner determine, without an independent evaluation, that the [g]rievant was entitled to a different, [i.e., higher] rating under the established standards.'" Award at 11 (quoting SSA, 30 FLRA at 1159).
Third, the Arbitrator concluded that "the Agency's records . . . contained no negative entries, criticisms, failures or deficiencies" with regard to Element 5. Id. According to the Arbitrator, the grievant's supervisor testified that "the [g]rievant 'did exactly what was expected of him.'" Id. The Arbitrator found that this testimony, "together with other facts presented at the hearing, indicates that the [g]rievant's rating on [Element] . . . '5' would not have been lowered if the violation had not occurred." Id.
Because the parties stipulated that "employees who are rated as exceeded under all elements must be rated as superior," the Arbitrator directed the Agency to rate the grievant's performance as "superior" for the July 1, 1995 through June 30, 1996 rating period. Id. at 12.(3) The Arbitrator also directed that "the [g]rievant must . . . be made whole for any cash awards he would have received as a result of having achieved a superior rating." Id.
III. Positions of the Parties
A. Agency's Exception
The Agency excepts to the Arbitrator's award only insofar as it directs the Agency to reinstate the grievant's previous performance rating on Element 5. As set forth supra note 1, the Agency does not take exception to the Arbitrator's finding of a violation, or his raising of the grievant's rating on Element 3.
The Agency claims that the direction to reinstate the grievant's previous performance rating is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that "[t]he arbitrator simply ordered the substitution of the previous year's performance appraisal instead of reconstructing from the record what the appraisal should have been." Exception at 10. The Agency also argues that the Arbitrator's decision that the grievant's rating on Element 5 should be raised is not supported by record evidence. The Agency asserts that U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 51 FLRA 725 (1996) (AFGE) governs the instant case and that, pursuant to that decision, the Arbitrator's remedy should be vacated.
B. Union's Opposition
The Union asserts that the grievant's previous rating was "only one factor" in the award and that the Arbitrator "also relied on [the grievant's] accepted suggestions . . . on the lack of timely progress reviews, on the lack of any criticism of [the grievant's] work performance and on the supervisor's utter inability to explain the rating he gave." Opposition at 2. The Union also asserts that the award is consistent with Authority precedent because "arbitrators are not required to explain the findings they make." Id. (citing U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342 (1991)). The Union argues that once the Arbitrator found that he could determine what the rating would have been absent the contractual violation, the Arbitrator satisfied the Authority's relevant requirements.
IV. Analysis and Conclusion
As the Agency's exception involves the award's consistency with law, we review the questions of law raised by its exception and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).
The Arbitrator applied the two-prong test established in SSA in resolving the grievance. The first prong in the SSA framework was recently modified by the Authority in 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).(4) However, as the dispute here involves only the Arbitrator's application of the second prong in the SSA framework, which BEP did not alter, the fact that the Arbitrator utilized the SSA test does not, by itself, render the award deficient.
Under prong II of both SSA and BEP, an arbitrator who has properly canceled a rating may order management to change the rating only when the arbitrator is able to determine what management would have rated the grievant if management had not acted improperly. See BEP, 53 FLRA at 154; SSA, 34 FLRA at 328. As stated in BEP, the remedy awarded must reflect a "reconstruction" of what management's appraisal of the grievant would have been if management had acted properly. Id. at 154.
Consistent with this requirement, to raise a rating, an arbitrator must "find that the record supported raising the grievant's ratings[.]" U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management Command, Defense Contract Management Area Operations Boston, Boston, Massachusetts and National Association of Government Employees, Local R1-210, 53 FLRA 210, 217 (1997).(5) Accordingly, an arbitrator may not simply substitute the grievant's previous appraisal on the ground that the agency "failed to indicate diminished performance on the part of the grievant from the previous year[.]" Id. However, when an arbitrator finds it "clear that [a] grievant was rated down because of" the agency's violation of either the law or the parties' agreement, then the Authority will uphold the arbitrator's reinstatement of the grievant's previous job appraisal rating. U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 222, 230 (1997) (emphasis added).(6)
In this case, the Arbitrator acknowledged that he could not substitute the grievant's previous rating unless such substitution would reconstruct what the Agency would have rated the grievant if the Agency had not violated the regulations and the parties' agreement. See Award at 9 (Arbitrator stated that fact that "the [g]rievant received an 'Exceeded' rating for [Element] . . . '5' on each of the two previous performance appraisals . . . does not mean that the [g]rievant's rating could not have been [subsequently] lowered"). Although the Arbitrator took into account the grievant's previous ratings, he also based his award on other findings.
Specifically, the Arbitrator found both that the grievant's supervisor considered employee suggestions in evaluating Element 5 and that the grievant made more suggestions during the appraisal period than any employee who had been rated as "exceeded" during that period. Award at 7. The Arbitrator concluded that if the grievant's supervisor had taken into account the number of the grievant's approved suggestions, then the supervisor would have rated the grievant as "exceeded" with regard to Element 5. In addition, the Arbitrator found that the Agency's records for the appraisal period in question "contained no negative entries, criticisms, failures or deficiencies" with regard to Element 5, and that, consistent with testimony from the grievant's supervisor, the grievant "did exactly what was expected of him." Id. at 11. The Arbitrator concluded from these findings that the grievant's rating on Element 5 "would not have been lowered if the violation had not occurred." Id.
We conclude from the foregoing that the award reflects the Arbitrator's reconstruction of what the Agency would have rated the grievant, absent the Agency's violation of regulation and the parties' agreement. Accordingly, the Agency has not established that the award is deficient under prong II of SSA or BEP. See Local 1168, 41 FLRA 250.
The Agency's exception is denied.
(If blank, the decision does not have footnotes.)
1. The Agency does not take exception to the Arbitrator's cancellation of the grievant's appraisal with respect to Elements 3 and 5. In addition, the Agency does not except to the Arbitrator's award insofar as it raised the grievant's rating on Element 3. Accordingly, we do not address Element 3 further.
2. The Arbitrator discussed the submission of suggestions in connection with both Elements 3 and 5. See Award at 11 (grievant's supervisor "admitted that none of the employees who he rated as "exceeded" standards of [Elements] '3' and '5' submitted as many approved suggestions during the rating cycle."). There is some ambiguity in the award about the Arbitrator's view of the relationship between employee suggestions and Element 5 alone. See id. at 10 (grievant's supervisor "acknowledged that one of the factors he considered in evaluating an employee's performance, at least with respect to [Element] '3', was whether the employee had made any employee suggestions that had been approved during the rating cycle."). However, in addition to stating that employee suggestions are relevant to Element 5, the Arbitrator stated, and the Agency does not dispute, that "[t]he Grievant . . . had to complete additional paperwork to submit these suggestions[,]" and "[t]he standards for duty '5' include '...accurately completes appropriate work documents . . . .'" Id. at 11, n.1. Accordingly, we conclude that the Arbitrator's determination to raise the grievant's rating on Element 5 was based, at least in part, on the submission of suggestions.
3. The record does not indicate whether the grievant was rated as "exceeded" under all other elements. However, as the Agency does not except to this aspect of the award, we do not address it.
4. In particular, under prong I of SSA, arbitrators were required, prior to canceling a grievant's performance appraisal, to find that management had not applied the established performance standards, or had applied them "in violation of law, regulation, or a properly negotiated provision of the parties' collective bargaining agreement[.]" SSA, 30 FLRA at 1160. In BEP, 53 FLRA at 153, the Authority modified prong I of the SSA analysis, finding that "agency regulations that do not constitute applicable laws, contract provisions that are not enforceable consistent with section 7106, and management's failure to apply established performance standards provide no basis for canceling a performance rating." Id. Thus, under prong I of BEP, an arbitrator may cancel a performance rating only if management applied the established performance standards for that job element in violation of either an applicable law or a provision of the parties' collective bargaining agreement on a section 7106(b) matter; the arbitrator may cancel the rating only if the violation affected that rating. Id. at 153.
5. See also, U.S. Department of Veterans Affairs, Medical Center, Martinsburg, West Virginia and National Association of Government Employees, Local R4-78, 52 FLRA 945, 948 (1997) (when an arbitrator does not "determine that the record support[s] a conclusion" that a grievant's previous rating be reinstated, but rather "not[es] that the Agency failed to document any shortcomings or produce evidence that would justify reducing the grievant's performance appraisal from previous years," the Authority will vacate the award).
6. See also U.S. Department of Veterans Affairs, Medical Center and American Federation of Government Employees, Local 1168, 41 FLRA 250 (1991) (Local 1168) (Authority upheld award reinstating grievants' previous appraisal because agency failed to provide any rationale for its decision to lower grievants' ratings from previous year, and because arbitrator determined what grievants' ratings would have been absent the agency's violations).