United States, Department of the Air Force, Air Force Material Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, (Agency) and American Federation of Government Employees, Local 1592 (Union)

[ v59 p14 ]

59 FLRA No. 4

UNITED STATES
DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIAL COMMAND
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1592
(Union)

0-AR-3652

_____

DECISION

August 12, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joe H. Henderson 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 Arbitrator sustained the grievance alleging that the Agency failed to properly appraise the grievant. The Arbitrator ordered the Agency to raise the grievant's overall rating and to adjust her monetary award, as appropriate. For the reasons that follow, we find that the remedy is deficient, and we modify the award.

II.     Background and Arbitrator's Award

      The grievant, a GS-9 employee, filed a grievance challenging her performance rating and alleging that she was evaluated under the wrong performance plan. During the grievance process, the Agency agreed that the grievant should have been given the GS-9 performance plan instead of the GS-11 performance plan. Therefore, the Agency offered to extend the grievant's rating period by ninety days and re-evaluate her under the GS-9 plan, in accordance with 5 C.F.R. § 430.208(i). [n2]  When the grievance was not resolved, it was submitted to arbitration, where the issue was framed as: "Did the [A]gency violate law, rule, regulation, Master Labor Agreement or local supplement in the [manner] it evaluated [the] grievant on her appraisal . . . ? If so, what should the remedy be?" Award at 3. The Arbitrator found that the Agency violated the parties' agreement by evaluating the grievant under the

      GS-11 plan instead of the GS-9 plan. The Arbitrator rejected the Agency's claim that the appropriate remedy of the violation was to provide the grievant with the GS-9 plan, extend the grievant's evaluation period, and reevaluate her. The Arbitrator found "the record . . . sufficient for him to make a finding that the [g]rievant should have been rated as `E', `Exceeded' as a [GS-9] on the following performance elements: 3, 4, 5, 6, & 8." Id. at 8-9. Accordingly, he instructed the Agency to raise the grievant's overall rating and to adjust her monetary award, as appropriate.

III.     Positions of the Parties

A.      Agency Exceptions

      The Agency argues that the award is deficient because the remedy is contrary to law. In this regard, the Agency argues that the Arbitrator could not change the grievant's performance rating because there was no GS-9 performance plan for the grievant's position. See Exceptions at 4. For the same reason, the Agency argues that the Arbitrator could not "make objective and detailed analyses of each element of the performance plan[,]" as required by 5 C.F.R. § 430.208. Id. at 6. The Agency claims that it presented the Arbitrator with a copy of this regulation, which demonstrates in § 430.208(g) that the appropriate remedy in this case is to extend the grievant's rating period by ninety days and reevaluate her under the appropriate GS-9 performance plan. Consequently, the Agency asserts that the award is both "factually and legally wrong" inasmuch as the Arbitrator found that "[n]othing was presented" that demonstrates that the Agency could "extend the evaluation period." Id. at 5.

B.      Union Opposition

      The Union contends that the award is consistent with both the Authority's precedent and applicable regulations. According to the Union, the Authority's precedent does not require the Arbitrator to "explain or justify why he considered the record sufficient to determine [ v59 p15 ] what the grievant's ratings would have been[.]" Opposition at 2 (citing United States Dep't of the Air Force, Tinker AFB, Okla., 42 FLRA 1342 (1991)). Moreover, according to the Union, 5 C.F.R. § 430.208(i) "specifically states that a rating may be changed `as the result of a grievance.'" Id. at 3. Finally, the Union argues that, because the Agency's exceptions are "so patently frivolous," the Authority should remand the case for "additional remedies." Id.

IV.     The Award is Contrary to Law

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chap. 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines 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 determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Where an arbitrator cancels a performance rating and orders management to grant a specific performance rating, the arbitrator must base that remedy on a reconstruction of what the grievant's rating would have been if the agency had properly appraised the grievant. See United States Dep't of the Air Force, Wright-Patterson Air Force Base, Ohio, 58 FLRA 145, 147 (2002) (Cabaniss dissenting) (citing United States Dep't of Veterans Affairs, Med. Center, Martinsburg, W. Va., 52 FLRA 945, 948 (1997)) (Wright-Patterson). Consistent with this requirement, an arbitrator must find that "the record support[s] rais