21:0401(53)AR - SSA and AFGE, Local 1760 -- 1986 FLRAdec AR

[ v21 p401 ]
The decision of the Authority follows:

 21 FLRA No. 53
                                            Case No. 0-AR-1020
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on exceptions to the award of
 Arbitrator Howard M. Golob filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
    The grievant objected to her performance evaluation rating of "Fully
 Satisfactory," under new performance standards, for a ten-month period
 ending on September 30, 1984, the end of the rating cycle established by
 the Agency.  The grievant had received a rating of "Excellent" under
 previous standards.  Article 21, Section 6A of the parties' collective
 bargaining agreement provided as follows:
          A.  Performance appraisals are normally prepared on a regular
       cycle.  For employees other than seasonal employees this will be a
       twelve (12) month cycle except for certain situations as set forth
       in SSA policy.
    The Arbitrator found that under the agreement the grievant was
 entitled to receive a performance appraisal covering a full 12 months
 regardless of whether that period coincided with the rating cycle
 followed by the Agency.  The Arbitrator concluded that the Agency
 violated the parties' agreement by rating the grievant's performance at
 the end of the regular Agency rating cycle rather than at the end of 12
 months.  He found a further violation of the agreement in the Agency's
 failure to provide informal discussions and progress reviews to inform
 the grievant that her performance was not at the previous level of
 "Excellent." As his award, the Arbitrator ordered that the ten-month
 rating be stricken from the grievant's personnel records and be used
 only as a progress review and that the grievant be given a new appraisal
 for the requisite 12-month period.
                           III.  FIRST EXCEPTION
                              A.  Contentions
    In its primary exception, the Agency contends that the award is
 contrary to law and Government-wide regulation.  More specifically, the
 Agency contends that the award violates section 7106(a)(2)(A) and (B) of
 the Statute because the Arbitrator substituted his judgment for that of
 management with respect to the grievant's performance appraisal.  As to
 its Government-wide regulation contention, the Agency specifically
 contends that the award violates 5 C.F.R. Section 430.201(c)(3), which
 provides that positions for which employment is not reasonably expected
 to exceed 120 days in a 12-month period may be excluded from the
 requirement for a performance appraisal. In support of this latter
 contention, the Agency in essence argues that the regulation requires it
 to appraise an employee who is in a position for more than 120 days,
 does not require that an employee be in the position for a full 12
 months before a performance rating can be made, and permits the
 appraisal of an employee after 120 days in a particular position.
                       B.  Analysis and Conclusions
    The Authority finds that the Agency fails to establish that the award
 is contrary to the Statute or Government-wide regulation.  The Authority
 first concludes that the Arbitrator did not substitute his judgment for
 that of management as to what the grievant's performance appraisal
 should be, but merely directed that the grievant be reevaluated by
 management for the requisite period under the established elements and
 standards.  Such an award is not contrary to the Statute as alleged.
 Bureau of Engraving and Printing, U.S. Department of the Treasury and
 Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA
 No. 39 (1985).
    Second, the Authority has previously decided that a proposal
 requiring annual performance appraisals is consistent with law and
 Government-wide rules and regulations and is within the duty to bargain.
  American Federation of Government Employees, AFL-CIO, Local 3028 and
 Department of Health and Human Services, Public Health Service, Alaska
 Area Native Health Service, 13 FLRA 697 (1984);  American Federation of
 Government Employees, AFL-CIO, Local 1968 and Department of
 Transportation, Saint Lawrence Seaway Development Corporation, Massena,
 New York, 5 FLRA 70 (1981), affirmed as to other matters sub nom. AFGE,
 Local 1968 v. FLRA, 6 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S.
 926 (1983).  The Arbitrator concluded in his interpretation of Article
 21, Section 6A of the parties' agreement that the grievant was entitled
 to an annual performance appraisal covering the full 12 months.  The
 Agency fails to show that the negotiated provision, as interpreted by
 the Arbitrator to require appraisals on an annual basis, is violative of
 the Statute or the cited regulation.  Further, there is nothing in 5
 C.F.R. part 430 which imposes a specific requirement that performance
 appraisals must be accomplished on particular dates.  The Authority
 concludes that the Agency is merely disagreeing with the Arbitrator's
 reasoning and conclusions and with his interpretation of the parties'
 agreement.  It is well-established that such disagreement provides no
 basis for finding an award deficient.  E.g., Federal Correctional
 Institution, Petersburg, Virginia and American Federation of Government
 Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983).
                           IV.  OTHER EXCEPTIONS
                              A.  Contention
    In its other exceptions, the Agency contends that the Arbitrator's
 finding that the appraisal should cover a 12-month period and that the
 grievant was not given required counselling is based on nonfacts and,
 further, that the award fails to draw its essence from the parties'
                        B.  Analysis and Conclusion
    The Authority concludes that the Agency's allegations merely
 constitute disagreement with the Arbitrator's interpretation of the
 collective bargaining agreement and as already indicated above, such
 disagreement provides no basis for finding the award deficient.
                               V.  DECISION
    Accordingly, for the above reasons, the Agency's exceptions are
    Issued, Washington, D.C., April 21, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY