21:0672(86)AR - SSA, Office of Hearings and Appeals, Region II and AFGE, Local 1760 -- 1986 FLRAdec AR



[ v21 p672 ]
21:0672(86)AR
The decision of the Authority follows:


 21 FLRA No. 86
 
 SOCIAL SECURITY ADMINISTRATION, 
 OFFICE OF HEARINGS AND APPEALS,
 REGION II
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1760
 Union
 
                                            Case No. 0-AR-1016
 
                                 DECISION
 
    I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exception to the award of
 Arbitrator Peter Florey 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.
 
    II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance concerned the denial of the recommendation of the
 grievant's supervisor that the grievant, a hearing specialist, be
 promoted to GS-11 as of June 10, 1984.  The grievant thereafter was
 promoted prospectively, but the grievance was submitted to arbitration
 protesting the earlier denial.  The Arbitrator noted that in order for a
 hearing specialist to be eligible for promotion, the specialist must be
 determined to be performing at least at the fully satisfactory level of
 the job elements of the position to which the employee is to be
 promoted.  The Arbitrator further noted with respect to the grievant
 that his promotion had been denied because it had been determined
 statistically that he was not averaging at least 1.9 decisions per day,
 the fully satisfactory level established for the quantitative
 case-processing element of the GS-11, hearing specialist position.  The
 Arbitrator concluded that the performance standards used to measure the
 grievant's numerical case production, at least up until the time of the
 grievance, failed to comply with the requirements of the parties'
 collective bargaining agreement that performance standards must
 accurately evaluate performance and procedures must be applied which
 reasonably ensure the accurate evaluation of performance.  The
 Arbitrator also concluded that management had failed to comply with the
 agreement obligation that factors affecting performance that are beyond
 the control of the employee be considered.  Moreover, the Arbitrator
 ruled that but for these erroneous applications of the dictates of the
 collective bargaining agreement, the recommended promotion of the
 grievant would originally have been approved.  Thus, as his award, the
 Arbitrator effectively ordered the grievant promoted retroactively to
 June 10, 1984, with backpay.
 
    III.  EXCEPTIONS
 
    In one of its exceptions, the Agency contends that the award is
 contrary to the Back Pay Act, 5 U.S.C. Section 5596, and section 7106(a)
 of the Statute.  In support the Agency essentially maintains that the
 sole basis for the award of a retroactive promotion and backpay was the
 Arbitrator's determination that but for management's failure to comply
 with the parties' collective bargaining agreement with respect to the
 appraisal of the grievant's case production as not qualifying him for
 promotion, his recommended promotion would orignally have been approved.
  In this respect the Agency first argues that his determination as to
 the appraisal of the grievant's performance is contrary to section
 7106(a) because it negated legitimately established performance
 standards.  The Agency further argues that consequently such
 determination cannot constitute the required finding under the Back Ay
 Act that the grievant was affected by an unjustified or unwarranted
 personnel action which directly resulted in a loss of pay and that
 accordingly the award of a retroactive promotion and backpay is
 deficient.
 
    IV.  ANALYSIS AND CONCLUSIONS
 
    In 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), and Bureau of Prisons, Department of Justice and
 American Federation of Government Employees, Local 148, 21 FLRA No. 15
 (1986), the Authority discussed in detail the role of an arbitrator in
 resolving disputes pertaining to performance appraisal matters.
 Specifically, on the basis of section 7106(a)(2)(A) and (B) of the
 Statute, providing for management's right to direct employees and to
 assign work, and on decisions of the Authority and the courts, the
 Authority stated that an arbitrator may not determine that a grievance
 directly challenging an agency's identification of job elements or
 establishment of performance standards is grievable or arbitrable.  The
 Authority further stated that an arbitrator also may not render an award
 substituting his or her judgment concerning job elements and performance
 standards for that of management.  Bureau of Prisons, slip op. at 3-4;
 Bureau of Engraving and Printing, slip op. at 2.
 
    In both of these cases, the Authority also acknowledged that there is
 a duty to bargain under section 7106(b)(3) on appropriate arrangements
 for employees adversely affected by management's exercise of its
 authority under section 7106(a), e.g., actions which adversely affect
 employees taken under the performance standards established by
 management.  Bureau of Prisons at 4;  Bureau of Engraving and Printing
 at 3 (both cases citing American Federation of Government Employees,
 AFL-CIO, Local 32 and Office of Personnel Managemen, Washington, D.C., 3
 FLRA 784, 791-92 (1980) (proposal 5)).  In OPM, Washington the Authority
 specifically found that the proposal in dispute merely established a
 general, nonquantitative requirement by which the application of
 critical elements and performance standards established by management
 may subsequently be evaluated in a grievance by an employee who believes
 that he or she has been adversely affected by the application of
 management's performance standard to him or her.  To that extent, the
 Authority held that the proposal was within the duty to bargain.  The
 Authority noted that under such a proposal an employee against whom
 management takes disciplinary action for unacceptable performance may,
 in a grievance of such action pursuant to section 7121(e) of the
 Statute, raise the issue of whether the performance standards as applied
 to him or her meet the contractual requirements, i.e., the arbitrator of
 such a grievance would simply determine if the standard established by
 management as applied to the grievant complied with the "fair and
 equitable" requirements of the parties' agreement.  In finding that
 proposal to be within the duty to bargain, the Authority specifically
 noted that such an arrangement did not affect management's discretion to
 determine the content of performance standards nor did it authorize an
 arbitrator to substitute his or her judgment for that of management as
 to the content of the standards.  The Authority was distinguished
 between proposed grievance procedures subjecting management's
 identification of critical elements and establishment of performance
 standards to arbitral review and grievance procedures relating only to
 the application of such elements and standards to an individual employee
 through the appraisal process.  Bureau of Prisons at 4;  Bureau of
 Engraving and Printing at 3.
 
    Consistent with these holdings and the Statute, the Authority in both
 cases specifically advised that an arbitrator may resolve an employee's
 grievance claiming to have been adversely affected in his or her
 performance appraisal by management's application of the established
 standards.  The Authority further advised that in resolving the
 grievance, the arbitrator properly may determine that management applied
 the established standards in violation of an appropriate,
 nonquantitative review criterion, and the arbitrator to that extent may
 sustain the grievance.  The Authority also stated that in sustaining the
 grievance, an arbitrator as a remedy may direct that the grievant's work
 product be properly evaluated by management or where appropriate that
 the grievant's work product as appraised by management be granted the
 rating to which entitled under the established elements and standards.
 The Authority cautioned, however, that the arbitrator may not substitute
 his or her judgment for that of the agency as to the appropriateness of
 elements and standards established by management.  The Authority further
 cautioned that the arbitrator may not conduct an independent evaluation
 of an employee's performance under the elements and standards
 established by management and may not substitute his or her own judgment
 for that of management as to what that employee's performance evaluation
 and rating should be.  Bureau of Prisons at 5-6;  Bureau of Engraving
 and Printing at 4.
 
    In this case the Authority finds that in sustaining the grievance,
 the Arbitrator improperly substituted his judgment for that of the
 Agency as to the appropriateness of the established standards.
 Specifically, the Authority concludes that an substantial part, the
 Arbitrator's determination that management's appraisal of the grievant's
 case production failed to comply with the parties' agreement is contrary
 to management's right under the Statute to establish the content of
 performance standards.  Thus, to the extent that the Arbitrator's
 determination that the agreement was violated is based on his finding
 that the performance standards were "unfair," because they failed to
 account for the grievant's situation of having to write for six judges
 and of primarily having prepared affirmations, see Award at 12, the
 Authority finds that determination deficient because it constitutes an
 improper review by the Arbitrator of the content of the standards and a
 substitution by the Arbitrator of his judgment for that of management as
 to the proper content of those standards.  See, e.g., American
 Federation of Government Employees, Local 32 and Office of Personnel
 Management, 16 FLRA 948 (1984)(proposal 3).  Such determination by the
 Arbitrator was not limited to an assessment of the application of the
 established standards to the grievant.  Instead, it constituted an
 improper inquiry by the Arbitrator into whether the established
 standards themselves made appropriate allowances for the grievant's
 situation.  See, e.g., American Federation of Government Employees,
 Local 32 and Office of Personnel Management, 19 FLRA No. 9 (1985)
 (proposal 3).  Consequently, to this extent the Arbitrator's
 determination that management's appraisal of the grievant's case
 production was contrary to the parties' agreement is contrary to the
 Statute.  That determination therefore cannot constitute the finding
 required in support of the award of retroactive promotion and backpay
 that the grievant was affected by an unjustified or unwarranted
 personnel action.
 
    Moreover, by in effect determining that the grievant's performance
 would have been rated at least as "fully satisfactory," the Arbitrator
 improperly conducted an independent evaluation of the grievant's
 performance.  As indicated in the discussion of Bureau of Prisons and
 Bureau of Engraving and Printing, it was appropriate for the Arbitrator
 to have determined that the appraisal by management of the grievant's
 production violated the collective bargaining agreement because in
 applying the established performance standards to the grievant,
 management failed to consider factors that were beyond the control of
 the grievant.  However, in the circumstances of this case, the
 Arbitrator was in no manner authorized to determine, as he in effect
 did, that the grievant's case production would have been rated at least
 as "fully satisfactory" but for the violation of the agreement.  As
 noted, management's appraisal of the grievant's numerical case
 production was based on the statistical determination of the grievant's
 average daily production and the rating of that production under the
 established standards.  The Authority finds that this is not the type of
 appraisal that would permit an arbitrator in an objective,
 nondiscretionary, and essentially mechanistic manner to determine
 without an independent evaluation that an aggrieved employee was
 entitled to a different rating under the established standards.  See
 Bureau of Prisons at 5-6;  Bureau of Engraving and Printing at 4.  In
 this case, the Arbitrator, in determining that the grievant's
 performance would have been rated higher but for the violation of the
 agreement, necessarily conducted an independent evaluation of the
 grievant's case production performance under the established standards
 and clearly substituted his judgment for that of management as to what
 the grievant's performance evaluation should have been.  Although the
 Arbitrator properly could have ordered the grievant reevaluated on
 finding that management had failed to consider factors that were beyond
 the control of the grievant, the Arbitrator instead independently
 determined what that rating would have been.  Compare Bureau of Prisons
 (in which case the arbitrator expressly examined the performance
 standards and the regulatory definition of outstanding performance,
 specifically evaluated the application of the standards to the
 grievant's performance as described in his performance appraisal, and,
 as his award, determined in accordance with the definition of
 outstanding performance and management's own appraisal of the grievant's
 performance that the grievant was entitled under the established
 standards to a rating of "outstanding" as to three of his job elements).
  For these reasons, the Arbitrator's determination that the grievant's
 performance would have been rated higher is also contrary to the Statute
 and the decisions of the Authority.  Such determination cannot
 constitute the finding required in support of the award of retroactive
 promotion and backpay that but for the violation of the collective
 bargaining agreement by management in failing to consider factors
 affecting performance beyond the grievant's control, the recommended
 promotion of the grievant originally would have been approved.
 
    V.  DECISION
 
    The Authority finds that the Arbitrator's determination with respect
 to the appraisal of the grievant's quantitative case production
 performance is deficient as contrary to management's rights under
 section 7106(a)(2)(A) and (B) of the Statute.  Consequently, such
 determination cannot constitute the requisite finding that the grievant
 was affected by an unjustified or unwarranted personnel action which
 directly resulted in the withdrawal or reduction in the pay, allowances,
 or differentials that the grievant otherwise would have earned or
 received.  The Authority further finds that the award of a retroactive
 promotion and backpay is contrary to the Back Pay Act.  Therefore,
 paragraphs 1-2 of the award, constituting the Arbitrator's determination
 with respect to management's appraisal of the grievant's performance and
 the award of a retroac