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28 FLRA NO. 90



SOCIAL SECURITY ADMINISTRATION
DEPARTMENT OF HEALTH AND
HUMAN SERVICES

                   Agency

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 3231

                   Union

Case No. 0-AR-1274

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Charles L. Mullin, Jr. filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant had been rated "Excellent" as to Generic Job Tasks #1 and #40 in her performance appraisal. A grievance was filed protesting that the grievant's ratings for those tasks should have been "Outstanding." The matter was submitted to arbitration. As his award, the Arbitrator issued the following:

The Grievant's Supervisor offered persuasive testimony in support of the Performance Appraisal prepared for the Grievant as her performance was rated for the particular period being evaluated. It is accepted that there existed no specific requirement that in making the evaluation he had to examine ratings of previous years. At the same time, when his rating was challenged with respect to Generic Job Tasks #1 and #40, and the Union demonstrated with persuasive evidence that the Grievant's performance remained at the same level as in previous years for those tasks, the decrease in rating of those two  Generic Job Tasks from "Outstanding" to "Excellent" became vulnerable. Management did not offer evidence to counter that of the Union and, consequently, the balance must tip in favor of the Grievant. Accordingly, Management is directed to reflect a change in GJT Items #1 and #40 from "Excellent" to "Outstanding."

III. Positions of the Parties

A. The Agency's Exceptions

In its exceptions, the Agency contends that the Arbitrator's award is contrary to the Statute and Government-wide regulations. Specifically, the Agency contends that the Arbitrator's award is contrary to section 7106(a)(2)(A) and (B) of the Statute because the Arbitrator has unlawfully substituted his own judgment for that of management as to what its performance standards should be. The Agency argues that the Arbitrator did not find that the Agency violated any provision of the parties' collective bargaining agreement, or of the Agency's appraisal system, and therefore had no authority to order the grievant's rating changed. The Agency also contends that the Arbitrator's award is contrary to Government-wide regulations because, by finding that management should have considered the grievant's performance of past years, he has in effect extended the rating period unlawfully beyond the one-year period prescribed by 5 C.F.R. 430.204(K).

B. The Union's Opposition

In its opposition, the Union first argues that the Agency's exceptions are untimely. The Union also contends that the Agency cannot file exceptions in this case because the Agency waived its right to file exceptions to arbitrators' awards in expedited arbitrations.

On the merits of the case, the Union argues that the Arbitrator did nothing more than apply the Agency's performance standards in a fair and equitable manner, which was a proper exercise of his authority and one required by the parties' collective bargaining agreement.

IV. Analysis and Conclusions

Initially, we find that the Agency's exceptions were timely filed and are properly before us. We have previously addressed and rejected the Union's argument that under the parties' collective bargaining agreement, exceptions may not be filed to expedited arbitration awards. See Health Care  Financing Administration and American Federation of Government Employees, AFL - CIO, Local 1923, 26 FLRA No. 101 (1987).

In Social Security Administration and American Federation of Government Employees, Local Union 1923, 25 FLRA No. 37 (1987), we discussed the role of arbitrators in resolving performance appraisal disputes and the principles that have been established regarding arbitrators' awards in these disputes. Based on our decisions in SSA and AFGE Local Union 1923 and the cases cited in that decision, we conclude that the Arbitrator's award in this case must be set aside.

An arbitrator may sustain a grievance on finding that management has not applied its own standards to the grievant, or has applied the standards in violation of law, regulation, or an appropriate provision of the parties' collective bar-gaining agreement. The Arbitrator here did not make any such finding. The Arbitrator found that there was no specific requirement that the supervisor examine the grievant's ratings of previous years. Despite this finding, the Arbitrator found that the ratings in question "became vulnerable" when they were compared with previous ratings for comparable performance. We conclude that, by considering factors that the Arbitrator conceded were not required to be considered by management, he conducted an independent evaluation of the grievant's performance under the elements and standards established by management for Generic Job Tasks #1 and #40, and substituted his judgment for that of management in the exercise of its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. In view of our conclusion, we need not address the Agency's other exception to the award.

V. Decision

Accordingly, the award is set aside.

Issued, Washington, D.C., August 25, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Member McKee, dissenting:

I disagree with the conclusion of the majority that the Arbitrator conducted an independent evaluation of the grievant's performance and improperly substituted his judgment for that of management contrary to section 7106(a)(2)(A) and (B) of the Statute. In my opinion, the Agency did not establish that the Arbitrator's award is inconsistent with the Statute and, therefore, the exception should be denied.

As quoted in the majority decision, the Arbitrator's award is very brief. Nevertheless, it seems clear on the face of the award that the Arbitrator based his conclusion concerning the grievant's actual performance during the rating period on the evaluation prepared by the grievant's supervisor. The Arbitrator stated: "The Grievant's Supervisor offered persuasive testimony in support of the Performance Appraisal . . . for the particular period being evaluated." In my opinion, the Arbitrator credited the supervisor's appraisal and did not conduct an independent evaluation of the grievant's actual performance. The Agency seems to concede this point in its exception. The Agency does not contend that the Arbitrator conducted an independent appraisal of the grievant's performance. The essence of the Agency's exception is that the Arbitrator improperly substituted his judgment for that of management as to the summary rating for that performance. Exceptions at 2-3.

With regard to the summary rating, while it is clear that the Arbitrator's judgment concerning the rating to which the grievant was entitled differed from that of management, I find that the Agency did not provide sufficient support for its assertion that the Arbitrator's judgment was improper under the Statute. For one thing, the Agency did not provide us with the relevant performance standards and/or its definitions of the summary ratings involved in the dispute to establish that there was any improper substitution of judgment, and the information is not otherwise apparent in the record before us.

Moreover, the Union establishes in its opposition to the Agency's exceptions that the dispute involved a provision in the parties' collective bargaining agreement that performance standards will be applied to employees in a fair and equitable manner. Opposition at 3-4. The Authority has previously held that an arbitrator may order corrective action for an agency's violation of a requirement in a collective bargaining agreement that performance standards will be fairly and equitably  applied. Bureau of Prisons, Department of Justice and American Federation of Government Employees Local 148, 21 FLRA No. 15 (1986), slip op. at 3-6. Under the decision in Bureau of Prisons and other currently applicable Authority precedent, an arbitrator's remedial authority in such cases is very limited. However, an arbitrator may, based on standards established by management, management's description of an employee's actual performance in an evaluation and management's definition of summary ratings, determine that the employee is entitled to a higher rating and order the agency to change the rating accordingly. Id. at 6.

In this case, it seems to me that it is reasonable to infer from the brief award that the Arbitrator effectively determined that the grievant's final performance rating of "Excellent" was not arrived at in a fair and equitable manner as required by the parties' agreement. Relying on the supervisor's appraisal, the Arbitrator expressly found that the grievant's performance under the standards involved remained at the same level as in previous years. Therefore, it appears that the Arbitrator based his award on management's established standards and its description of the grievant's actual performance. Further, in the absence of any evidence to the contrary, it does not appear that the Arbitrator substituted his judgment for management's definition or criteria for summary ratings. In my opinion, therefore, the award can be interpreted as consistent with the Statute under the rationale in Bureau of Prisons as an appropriate remedy for the Agency's unexplained failure to accord the grievant the summary rating of "Outstanding", which management had previously determined was to be accorded to the level of performance achieved by the grievant. In these circumstances, I have concluded that the award is not on its face inconsistent with section 7106(a)(2)(A) and (B) of the Statute and the Agency has not established otherwise. The Agency's exception therefore should be denied.

Issued, Washington, D.C., August 25, 1987.

Jean McKee, Member

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