[ v58 p148 ]
Dissenting Opinion of Chairman Cabaniss:
I dissent from my colleagues as to only one point. Consistent with Prong II of the test established by United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997), I would find that the Arbitrator's raising of the grievant's two appraisal factors to a score of eight, based upon the Arbitrator's "opinion" that the grievant would have received "at least a score of [eight]" if the appraisal had been just (after having also found that the grievant failed to receive a "justified [a]ppraisal"), adequately reflects what a reconstruction of the grievant's rating would have been if the Agency had properly appraised the grievant. [n*] In reaching that conclusion, I note the distinction between one arbitrator who says, "I find the contract violated and therefore I award the following higher rating," and another arbitrator who says, "I find the contract violated and, had it not been violated, the grievant would have received the following higher rating."
Contrary to the majority, I find no requirement established by United States Dep't of Defense, Ogden Air Logistics Ctr., Hill AFB, Utah (Hill AFB), 54 FLRA 487, 492-93 (1998), that an arbitrator must point to specific evidence that supports a raised rating. Rather, Hill AFB seems to require only that an arbitrator must be "able to determine what management would have rated the grievant if management had not acted improperly" or, put another way, that "the record support[s] raising the grievant's ratings." Id., citing to United States Dep't of Defense, Def. Logistics Agency, Def. Contract Mgmt. Command, Def. Contract Mgmt. Area Operations Boston, Boston, Mass., 53 FLRA 210, 217 (1997). I would find that the Arbitrator's statements in the award, however minimal, satisfy the requirements discussed by Hill AFB.
File 1: Authority's Decision in 58 FLRA No. 28
File 2: Opinion of Chairman Cabaniss
Footnote * for 58 FLRA No. 28 - Opinion of Chairman Cabaniss
The Arbitrator framed the issue as whether the rating was justified, and the Agency has not excepted to this formulation of the issue.