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51 FLRA No. 104

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

MARTINSBURG, WEST VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-78

(Union)

0-AR-2657

_____

DECISION

May 24, 1996

_____

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

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Kathleen Jones Spilker 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 did not file an opposition to the Agency's exception.

The grievant protested his annual performance appraisal. The Arbitrator ordered the grievant's rating on one job element raised to exceptional and his summary rating raised to highly successful.

We remand the award to the parties for submission to the Arbitrator to have her clarify whether she found that management violated the parties' collective bargaining agreement in appraising the grievant.

II. Arbitrator's Award

For the annual rating period in dispute, the grievant's supervisor rated the grievant fully successful on all of his job elements and determined that his summary rating was also fully successful. The grievant claimed that he should have been rated exceptional on one of his elements and should have received a summary rating of highly successful.

The Arbitrator concluded that the grievant warranted a rating of exceptional on the disputed element. In her award, the Arbitrator set forth provisions of the parties' collective bargaining agreement that had been cited by the parties. In canceling the grievant's rating and concluding that the grievant warranted a rating of exceptional, she applied the definition of exceptional set forth in the Agency's performance appraisal system regulations. She also found that the grievant's supervisor had "improperly" relied on a complaint against the grievant that had been resolved in his favor and that the supervisor was "annoyed by [the grievant's] Union functions and felt that they took too much time away from the [g]rievant's job." Award at 14, 15. Accordingly, the Arbitrator sustained the grievance and ordered the grievant's rating raised to exceptional on the disputed job element and his summary rating raised to highly successful.

III. Agency's Exception

The Agency contends that the award is contrary to management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that the Arbitrator canceled the grievant's performance rating without making the requisite finding that the Agency failed to apply the established standards or applied them in violation of law, regulation, or the collective bargaining agreement.

IV. Analysis and Conclusions

As recognized by the Agency, it is well established that when an arbitrator finds that management violated a properly negotiated provision of the parties' collective bargaining agreement in appraising a grievant, the arbitrator may cancel the grievant's performance appraisal or rating. U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 51 FLRA 379, 382 (1995). In this case, it is not clear to us whether the Arbitrator found that management violated the parties' agreement in appraising the grievant.

In her award, the Arbitrator quoted Article 5, Section 1 of the parties' agreement.⁽¹⁾ In canceling the grievant's rating, she specifically found that the grievant's supervisor had improperly relied on a complaint against him and had expressed annoyance at his union activities. Although the Arbitrator did not expressly rely on a violation of the collective bargaining agreement in canceling the grievant's rating, these findings could be construed as support for a violation of Article 5, Section 1 of the agreement, so as to raise uncertainty about the basis of the award. Cf. Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 377, 382-83 (1990) (because many of the findings of the arbitrator closely paralleled alleged violations of the parties' collective bargaining agreement, the award was remanded for the arbitrator to clarify whether any of the deficiencies he found constituted violations of the agreement). Accordingly, we remand the award to the parties for submission to the Arbitrator to have her clarify whether any of the deficiencies she found in management's appraisal of the grievant constituted violations of the parties' collective bargaining agreement.⁽²⁾

V. Decision

The award is remanded to the parties for further action consistent with this decision.

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

1. Article 5, Section 1, provides that employees "will be treated in a fair, equitable and respectful manner without regard to politics, race, color, religion, national origin, sex, marital status, age, or handicapping condition and with proper regard to individual privacy and all other rights under law." Award at 1.

2. In contending that the award is contrary to management rights, the Agency has not addressed whether the definition of exceptional contained in its performance appraisal system regulations constitutes an "applicable law," within the meaning of section 7106(a)(2) of the Statute, or whether the definition is otherwise enforceable in arbitration. Consequently, we have not addressed the extent to which a grievance involving the exercise of a management right under section 7106(a)(2) may seek to impose or enforce constraints that do not constitute "applicable laws," as that term has been construed by the U.S. Supreme Court in Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990). See American Federation of Government Employees, Local 1941 and U.S. Department of the Army, U.S. Army Chemical and Military Police Centers and Fort McClellan, Fort McClellan, Alabama, 51 FLRA 998, 1001 n.3 (1996).

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