Department of the Army, Army Aviation and Missile Command, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, 0-AR-3492, March 31, 2003, 58 FLRA No. 97.

Although FLRA affirms an arbitrator's cancellation of a disputed performance rating because the arbitrator had found violations of a negotiated regulation, it sets aside the remedies (extending grievant's prior appraisal under a different rating system and approving training) because they did not satisfying Prong II of the BEP test--i.e., they did not constitute a reconstruction of what management would have done had it provided effective feedback at the midyear review and had the senior rater not attended the performance review. The agency is instead ordered to reevaluate the grievant in accordance with the regulation.

The agency had established a new performance appraisal system, which had been negotiated with the union and set forth in AMCOM Regulation 690-5. For the initial period under the new system (October 1, 1997, to June 30, 1998) the grievant, who had received an "A" under the superseded system, was assigned an overall rating of "B." She grieved and the matter was referred to arbitration.

The arbitrator found the ratings on certain critical elements were deficient. For example, she found that the rating on the element of technical competence was influenced by lack of training and was inconsistent with a higher rating that the grievant's supervisor gave her in connection with the grievant's application for a promotion in February 1998. On the element of working relationships, she found that "[n]o specific problem was identified, hence none is found to exist." Nor should the grievant have been rated on the element of management/leadership, since she wasn't a supervisor.

The arbitrator also expressly found a violation of AMCOM Regulation 690.5 by the senior rater's attendance at the grievant's performance review meeting and implicitly, in the view of FLRA, a violation of section 5.5 of AMCOM Regulation 690.5, pertaining to midyear reviews and periodic feedback by not providing the grievant with required feedback. As her award, the arbitrator ordered the agency to extend her September 16, 1997, rating to August 8, 1999. She also ordered it to approve advanced management training for the grievant and to award backpay for any income lost as the result of the improper appraisal.

Since the extension of the grievant's September 16, 1997, rating affected management's right to direct and assign work and the order to approve training affected its right to assign work, the Authority applied its BEP test. Before doing so, it reiterated that "arbitrators may not substitute their judgment for that of management as to what a grievant should have been rated." It pointed out that "the Authority [1]rejects appraisals by arbitrators that are not, under prong I, directly linked or connected to a finding by the arbitrator of a violation of an applicable law or a contract provision negotiated pursuant to § 7106(b), as well as [2] appraisals that do not reflect a reconstruction, under prong II, of what management would have rating the grievant if management had not violated that applicable law or that contract provision negotiated pursuant to § 7106(b)."

The Authority, referring to the arbitrator's findings with respect to the senior rater's attendance at the grievant's performance review meeting and to midyear reviews and feedback, rejected the agency's contention that the arbitrator didn't find that the violations of AMCOM Regulation 690.5 affected the grievant's rating.

The Arbitrator expressly found a violation of AMCOM Regulation 690.5 by the senior rater's attendance at the grievant's performance review meeting. In addition, the Arbitrator implicitly found a violation of section 5.5 of AMCOM Regulation 690.5, which pertains to midyear reviews and periodic feedback. We conclude that the violations of AMCOM Regulation 690.5 related to the performance appraisal process and are the basis of the cancellation of the disputed appraisal. Accordingly, we conclude that the Agency has provided no basis under prong I for finding that the Arbitrator's award is deficient.

However, FLRA did find deficient the arbitrator's ordering the agency to extend the grievant's prior appraisal and ordering the agency to approve training because neither order reflected a Prong II reconstruction of what the agency would have done had it not violated the regulation. Regarding the former, it said that the ordered extension of the grievant's appraisal "cannot reflect a reconstruction when the grievant's prior appraisal was conducted under a performance appraisal system that differed from the system of the disputed appraisal and when the disputed appraisal period ended June 30, 1998, not August 8, 1999, as extended by the Arbitrator." FLRA corrected this deficiency by modifying the award to order the agency to reappraise the grievant. Regarding the latter, it said the following:

Nothing in these provisions [i.e., provisions dealing with midyear progress reviews and senior performance rating officials] addresses, directly or indirectly, approval of employees for training. Consequently, reconstruction of what the Agency would have done had it complied with these provisions of AMCOM Regulation 690.5 cannot entail approval of the grievant for advanced management training. Accordingly, this portion of the award is contrary to § 7106 of the Statute, and we set it aside.