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58 FLRA No. 179
DEPARTMENT OF THE AIR FORCE
OKLAHOMA AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
OF GOVERNMENT EMPLOYEES
July 31, 2003
Before the Authority: Dale Cabaniss, Chairman; and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Elvis C. Stephens filed by the Agency under § 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 grievance alleged that the Agency violated the parties' collective bargaining agreement and various regulations when it issued the grievant his annual performance appraisal. The Arbitrator, acting pursuant to an expedited arbitration process, found that the Agency had violated the agreement and an Agency regulation by failing to conduct periodic discussions with the grievant about his performance throughout the course of the rating period. To remedy these violations, the Arbitrator awarded the grievant damages in the form of a cash award equal to what he would have received had he received a higher overall performance score or three days off with pay, at the grievant's option. For the reasons that follow, we find a portion of the award deficient and set part of it aside.
II. Background and Arbitrator's Award
The grievant received an annual performance score of 74 and an overall rating of "Fully Successful." The Agency rated the grievant as "Exceeds" in only two of seven critical performance elements, thereby rendering him ineligible for an overall rating of "Excellent," which requires that an employee be rated as "Exceeds" in more than one half of his or her critical elements.
After receiving the performance appraisal, the grievant filed a grievance contending that the Agency did not properly conduct the performance review. He requested that he receive a performance score of 76, the same rating he had received the previous year. After the parties could not resolve the matter, they submitted it to arbitration.
Before the Arbitrator, the Union alleged that the Agency violated Article 15, Section 15.02(f) of the parties' collective bargaining agreement (CBA) by failing to conduct multiple discussions with the grievant concerning his performance throughout the rating period. [n1]
The Arbitrator found that the Agency held only one meeting with the grievant concerning his performance over the course of the rating period. Further, he found that the written comments provided to the grievant did not provide the grievant with sufficient guidance as to his performance, as required by Article 15, Section 15.02(f) of the CBA and Air Force Regulation (AFR) 40-452. [n2] Thus, he found that the Agency had violated those provisions by not providing the grievant with the required discussions of his performance during the rating period. He ordered the Agency to amend the grievant's appraisal to reflect a score of 76, an overall rating of "Excellent," and a rating of "Exceeds" in four of seven critical elements. He also ordered that the grievant receive compensatory damages in the form of either a cash amount equivalent to the amount he would have received had his rating been "Excellent" or, at the grievant's discretion, three days' time off with pay. [ v58 p761 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency first claims that the awarding of cash damages to the grievant is contrary to law and regulation. Citing United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541 (2000) (Warner Robins), the Agency argues that the award is contrary to the Back Pay Act because the Arbitrator failed to find that the Agency's contractual violation resulted in a loss of pay for the grievant. Additionally, the Agency claims that the award is contrary to AFR 40-452, Chapter 1, Paragraph 1-10(f), which prohibits an employee from grieving the non-receipt of a cash award. [n3]
The Agency next contends that the Arbitrator lacked the authority to fashion a remedy because the grievance was not timely filed under Article 6, Section 6.08(b) of the parties' agreement. [n4] The Agency maintains that the grievance over the Agency's failure to conduct a mid-term performance review, which was filed after the end of the rating period, could not be timely under that provision. Further, the Agency argues that Article 15, Section 15.11 of the parties' agreement did not permit the Arbitrator to rule on the grievance, as that provision does not permit employees to grieve any matter related to the performance appraisal process after the issuance of an annual appraisal. [n5]
Finally, the Agency argues that the award does not draw its essence from the agreement as it is not possible to interpret Article 15, Section 15.11 of the parties' agreement to allow the grievant to file a grievance over the Agency's failure to conduct mid-term performance reviews once the performance appraisal period is complete.
B. Union's Opposition
The Union first argues that the award is not contrary to law and regulation. The Union maintains that arbitrators are given wide latitude to formulate remedies and, contrary to the assertion of the Agency, the Arbitrator did not award cash damages, but awarded only permissible compensatory damages. Further, the Union argues that the grievant lost pay as a result of his lowered performance appraisal, as the Agency must give employees certain awards if they receive higher performance appraisals.
The Union also argues that the relevant provisions of AFR 40-452 do not bar the grievance because the grievant did not request cash damages but instead requested compensatory damages, a claim which is not barred by the relevant regulation.
The Union next asserts that the Agency is not permitted to raise its arguments regarding the arbitrability of the grievance because it did not raise the issue during the processing of the grievance or before the Arbitrator.
IV. Analysis and Conclusions
A. The Agency did not challenge the timeliness of the
grievance before the Arbitrator
The Agency argues that the Arbitrator was without jurisdiction under the parties' agreement to adjudicate the grievance because it was not timely filed. However, there is no evidence in the award or the record presented to the Authority that the Agency raised that argument before the Arbitrator. Award; Exceptions, Enclosure 3. Arguments related to the procedural arbitrability of the grievance should have been presented to the Arbitrator. See United States Dep't of Veterans Affairs, Gulf Coast Veterans Health Care Sys., Biloxi, Miss., 57 FLRA 77, 79 (2001). Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not presented to the Arbitrator. As the Agency's exceeds authority and essence exceptions are based upon arguments related to contractual timeliness that were not presented to the Arbitrator, we will not consider them in accordance with our regulations.
B. The Arbitrator's award is contrary to law
The Authority reviews questions of law raised by exceptions and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing [ v58 p762 ] United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Although the Agency argues that the award is contrary to AFR 40-452, the argument that a grievance related to a cash award was proscribed by that regulation was not presented to the Arbitrator, thus, we will not consider it. See 5 C.F.R. § 2429.5. We also note that the grievance was not premised on the Agency's failure to grant the grievant a cash award, but instead focused on the grievant's performance evaluation, a proper subject for a grievance under Article 15 of the agreement. While we do not consider the Agency's argument regarding a regulatory bar to the grievance, we find that the award is contrary to law by concluding that the Arbitrator's award violates the Back Pay Act, 5 U.S.C. § 5596.
Under the Back Pay Act, an award of back pay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials. 5 U.S.C.
§ 5596(b). The Agency argues that the Arbitrator failed to find that the personnel action resulted in a loss of pay for the grievant. We agree. The only unjustified or unwarranted personnel action identified in the Arbitrator's award was the Agency's failure to provide the grievant with required performance discussions. Award at 4. The Arbitrator did not make any finding, explicitly or implicitly, that the failure to hold these discussions resulted in any loss of pay for the grievant. Moreover, the Arbitrator did not find a violation of the agreement from the Agency's failure to give the grievant a rating of excellent. Accordingly, as the second requirement for an award of back pay was not met, the award is deficient. See Warner Robins, 56 FLRA at 543.
Because the Agency has not challenged the portion of the award requiring the Agency to raise the grievant's performance appraisal, we leave that portion of the award undisturbed. Contrary to the general assertion of the Union, the grievant's amended appraisal does not entitle him to a cash award. In this regard, Chapter 1, Paragraph 1-3(d) of AFR 40-452 prohibits the Agency from granting an award based solely on an employee achieving a certain rating, and instead links the granting of awards to the circumstances of individual employee's performance. Attachment 5 to Agency's Exceptions at 2. As the Union provided no reference to any authority in support of its contrary assertion, we reject the Union's argument.
We find that the Arbitrator's award requiring the Agency to grant the employee a cash award or three days off is contrary to law and is set aside. However, that portion of the award requiring the Agency to raise the employee's performance appraisal is not affected.
Footnote # 1 for 58 FLRA No. 179 - Authority's Decision
Supervisors will meet with individual employees periodically during 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 shall provide clear guidance to the employee . . .
Award at 2.
Footnote # 2 for 58 FLRA No. 179 - Authority's Decision
AFR 40-452, Chapter 1, Paragraph 1-2(b) provides, in pertinent part: "The work performed is tracked and monitored; and, supervisors keep employees advised of how well they are meeting expectations by giving them personal performance feedback." Award at 2-3.
Footnote # 3 for 58 FLRA No. 179 - Authority's Decision
AFR-40-452, Chapter 1, Paragraph 1-10(f) provides: "The nonreceipt of a cash award, honorary award, or QSI may not be appealed to the MSPB, or grieved under AFR 40-771, or under negotiated grievance and arbitration procedures." Attachment 5 to Agency Exceptions at 6.
Footnote # 4 for 58 FLRA No. 179 - Authority's Decision
A bargaining unit employee desiring to file a grievance must first file an AFMC Form 913, Standard Grievance Form, with the first level supervisor within 20 calendar days of the date of the management action giving rise to the grievance or reasonable awareness of such action or occurrence.
Attachment 4 to Agency Exceptions at 20.
Footnote # 5 for 58 FLRA No. 179 - Authority's Decision
Any employee dissatisfied with any aspect of the employee performance procedures outlined in this Article such as periodic performance review, annual rating, etc. may file a grievance under the provisions of Article 6. An employee does not forfeit the opportunity to grieve his or her appraisal by not grieving periodic reviews or ratings which may have affected that appraisal.
Attachment 4 to Agency Exceptions at 51.