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59 FLRA No. 4
DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIAL COMMAND
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
OF GOVERNMENT EMPLOYEES
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] raising the grievant's ratings." Id. (citing United States Dep't of Defense, Ogden Air Logistics Center, Hill Air Force Base, Utah, 54 FLRA 487, 492-93 (1998)).
Here, the Agency asserts, and the Union does not dispute, that there is no GS-9 performance plan for the grievant's position. Without a valid performance plan for the grievant's position, the award raising the grievant's performance rating cannot reconstruct what management would have done had it used the proper performance plan. In this connection, applicable regulations require an agency to provide an employee with a "rating of record" that is "based on appraisal of performance on critical elements and, as applicable, non-critical elements[,]" as established in the performance plan. 5 C.F.R. § 430.208(a) and (b). Thus, § 430.208 requires all ratings of record to be based upon an evaluation of an employee's actual job performance measured against the critical and non-critical performance elements identified in the applicable performance plan. As there was no applicable performance plan for the grievant's position in this case, the award is deficient.
Where an award raising a grievant's performance appraisal is found deficient, but the finding that the agency failed to properly appraise the grievant is left intact, the Authority's longstanding practice is to modify the award. See, e.g., United States DoD, Defense Logistics Agency, Defense Contract Mgmt. Command, Defense Contract Mgmt. Area Ops. Boston, Boston, Mass., 53 FLRA 210 (1997). Moreover, as the Agency points out, applicable regulations provide the appropriate remedy in this case. In particular, 5 C.F.R. § 430.208(g) provides that "[w]hen a rating of record cannot be prepared at the time specified, the appraisal period shall be extended. Once the conditions necessary to complete a rating of record have been met, a rating of record shall be prepared as soon as practicable." Consistent with this regulation, we modify the award by striking the portions that direct the Agency to raise the grievant's performance rating and substituting the following: The Agency shall extend the grievant's appraisal period by 90 days and reevaluate her using the GS-9 performance plan. See Soc. Sec. Admin., Office of Hearings and Appeals, Paducah, Ky., 58 FLRA 124 (2002) (modifying award consistent with parties' agreement, which provided the appropriate remedy) (Member Pope concurring) (citing United States Dep't of HHS, Family Support Admin., Wash., D.C., 42 FLRA 347, 360 (1991)).
V. Decision [n3]
The award is modified in accordance with this decision.
Dissenting Opinion of Chairman Cabaniss:
Although I agree with the decision and underlying rationale to set aside the Arbitrator's award, I write separately to disagree with the remedy imposed by the Authority subsequent to the initial set aside of the award. With limited exception, our responsibility as an adjudicatory body having limited jurisdiction is to resolve those issues placed before us by the parties: absent some express or apparent grant of authority, I would not place the Authority in the position of the arbitrator and apply laws or agreements, for example, in directly fashioning a remedy. For that reason, I would remand the case back to the parties for further action.
Footnote # 1 for 59 FLRA No. 4 - Authority's Decision
Footnote # 2 for 59 FLRA No. 4 - Authority's Decision
5 C.F.R. § 430.208(i) provides that "[w]hen either a regular appraisal period or an extended appraisal period ends, and any agency-established deadline for providing ratings of record passes or a subsequent rating of record is issued, an agency shall not produce or change retroactively a rating of record that covers that earlier appraisal period except" as provided for in subsections (1) through (3).
Footnote # 3 for 59 FLRA No. 4 - Authority's Decision