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59 FLRA No. 4
U. S. Dept. of the Air Force, Air Force Material Command, Ogden Air Logistics Center, Hill Air Force Base, Utah and AFGE, Local 1592-AR-3652 (Henderson, Arbitrator) (Decided August 12, 2003)
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. The Authority found that the remedy was deficient and modified the award.
The Authority noted that 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. Here, it was undisputed that there was 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.
The Authority further stated that 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 was deficient. Consistent with this regulation, the Authority modified the award by striking the portions that direct the Agency to raise the grievant's performance rating. The Authority further held that the Agency shall extend the grievant's appraisal period by 90 days and reevaluate her using the GS-9 performance plan.