---

28 FLRA NO. 124

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION

     Agency

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3231

     Union

Case No. 0-AR-1335

DECISION 1

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Myron L. Joseph 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.

For the reasons discussed below, we find that the award is deficient because the Arbitrator improperly substituted his judgment for that of management as to the grievant's performance appraisal. Consequently, we modify the award.

II. Background and Arbitrator's Award

The parties submitted to arbitration the issue of whether the grievant's October 1985 performance ratings for generic job tasks (GJT) 1, 20, 40, 71, 72, and 111 and her summary appraisal violated the national agreement. The Arbitrator found that the grievant's ratings for GJT 1 and 71 were not in violation of the agreement. However, as to GJT 20, 40, 72, and 111, the Arbitrator found that the elements and standards established by management had not been applied as required by the agreement.

As to GJT 20, the Arbitrator ruled that the grievant's supervisor had not provided a reasonable explanation and had not documented his "2" rating (fully met the standard). To the Arbitrator the grievant's performance as described by her supervisor in the appraisal and in progress reviews during the year was at level "3" (exceeded the standard). As to GJT 40, the Arbitrator likewise ruled that the supervisor had not provided a reasonable explanation and had not documented the "2" rating as required. The Arbitrator concluded that there was not an appropriate basis for reducing the grievant's performance rating from the level "3" she had received every year since 1982 and determined that the record indicated that the grievant's performance was at level "3." As to GJT 72, the Arbitrator again ruled that the "2" rating had not been documented or explained. He determined that the record supported that the grievant's performance as described by her supervisor in the appraisal and progress reviews was at level "3." As to GJT 111, the Arbitrator noted that in 1982 and 1983 the grievant had been rated at level "3" and in 1984 she had been rated at level "4" (substantially exceeded the standard). The Arbitrator concluded that no valid reason was presented for reducing the grievant's rating from "3" to "2" and determined that the grievant's performance as described by her supervisor in the appraisal and progress reviews was at level "3."

On this basis the Arbitrator concluded that the grievant was entitled to a "3" rating for these generic job tasks and that under the decisions of the Authority, he could properly direct that her work product be granted these ratings. He stated that in reaching the conclusion that the grievant was entitled to these ratings, he had not independently evaluated the grievant's performance, and he had not substituted his judgment for that of management as to what the grievant's evaluation and rating should be. He explained that there was no independent evaluation or substitution of judgment because after certain invalid, inappropriate, and irrelevant criticisms and observations by the grievant's supervisor were eliminated from the grievant's appraisal, the supervisor's assessment of her performance for each of these generic job tasks was best described by the performance standards established by management for level "3." Accordingly, the Arbitrator awarded as follows:

On the basis of the record as a whole and for the reasons discussed above, it is found that the rating received by the grievant in generic job tasks 20, 40, 72, and 111 and the summary appraisal on October 29, 1985, were in violation of the National Agreement. The ratings received for generic job tasks 1 and 71 were not in violation of the Agreement.

The Grievant was entitled to ratings of "3" for generic job tasks 20, 40, 72, and 111, and the Employer is directed to adjust her ratings for the October 1, 1984 to September 30, 1985, period accordingly. In addition, the Employer is directed to change her Summary Appraisal to "Excellent."

III. Exceptions

A. Contentions

As one of its exceptions, the Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that despite the Arbitrator's statements to the contrary, the award is deficient to the extent it orders ratings changed because the Arbitrator substituted his own judgment for that of management as to what the grievant's performance ratings on these generic job tasks should be. The Agency maintains that the performance standards for each of these generic job tasks establishes non-numeric expectations of job performance and required the supervisor to judge whether the grievant's performance had fully met the standard (a "2" rating) or had exceeded the standard (a "3" rating). The supervisor's judgment was that the grievant's performance of these generic job tasks had met the standard. The Arbitrator in his award has done nothing more than substitute his judgment for that of the grievant's supervisor.

In opposition, the Union contends that the Arbitrator has not substituted his judgment for that of management. The Union claims that the Arbitrator did not determine that the grievant was entitled to level "3" ratings by rejecting the supervisor's evaluation. Instead, the Arbitrator compared the supervisor's documented evaluation of the grievant's performance with the established standards and correctly determined that the appropriate rating was "3."

B. Analysis and Conclusions

We conclude that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute to the extent that it has ordered the grievant's performance ratings changed. 

Contrary to the statement of the Arbitrator and the contention of the Union, we find in agreement with the Agency that the Arbitrator independently evaluated the grievant's performance under the elements and standards established by management and substituted his judgment for that of management as to what the grievant's evaluations and ratings should be.

In many decisions we have discussed in detail the role of an arbitrator in resolving disputes pertaining to performance appraisal matters. For example, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, AFL - CIO, Local 987 28 FLRA No. 83 (1987) (Member McKee, concurring in the result). We found that an arbitrator may resolve a grievance over whether an employee was adversely affected in his or her performance appraisal by management's application of the established performance standards. The arbitrator may sustain the grievance on finding that management had not properly applied to the grievant the standards which it has established. In sustaining the grievance, the arbitrator may direct when appropriate that the grievant's work product or performance be granted the rating to which entitled under the established elements and standards. As to when such a direction would be appropriate, we have indicated that the disputed appraisal and elements and standards should be of the type that permits the arbitrator "in an objective, nondiscretionary, and essentially mechanistic manner to determine without an independent evaluation that the aggrieved employee was entitled to a different rating under the established standards." Warner Robins Air Logistics Center, slip op. at 3 (quoting General Services Administration, Region 10 and American Federation of Government Employees, Council 236, 22 FLRA No. 8 (1986) and Social Security Administration, Office of Hearings and Appeals, Region II and American Federation of Government Employees, Local 1760, 21 FLRA No. 86 (1986)).

We find that the appraisal and the generic job tasks and standards in dispute in this case did not permit the Arbitrator in an objective, nondiscretionary, and essentially mechanistic manner to determine without an independent evaluation that the grievant was entitled to ratings of "exceeded the standard" for GJT 20, 40, 72, and 111. In our view, by determining that after certain invalid, inappropriate, and irrelevant criticisms and observations of the grievant's supervisor were eliminated from the grievant's appraisal, the supervisor's assessment of the grievant's performance for each of these non-numeric, generic job tasks was best described as exceeding the standard, the Arbitrator independently evaluated the grievant's performance under the established elements and standards and substituted his judgment for that of management as to what the grievant's evaluation and rating should be.

IV. Decision

For these reasons, the award is deficient and must be modified. 2 The following paragraph is substituted for paragraph 2 of the award.

Management shall reevaluate in accordance with the National Agreement the grievant's performance under generic job tasks 20, 40, 72, and 111 for the period ending September 30, 1985, and shall apply those ratings in determining her summary appraisal for the disputed appraisal period.

Issued, Washington, D.C., September 15, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY

Member McKee dissenting:

I disagree with the decision of the majority in this case. As I indicated in my separate opinion in Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, AFL - CIO, Local 987, 28 FLRA No. 83 (1987), I believe that an arbitrator has the discretion to determine and award an employee the appropriate rating under any performance standard when the arbitrator determines that management improperly applied the standard in the employee's performance appraisal. As I further stated in Warner Robins, it is my opinion that as in review of performance-based actions under 5 U.S.C. 4303 by arbitrators or the Merit Systems Protection Board, an agency should be expected to support a performance rating by substantial evidence. In my view, therefore, if an arbitrator in a performance appraisal grievance determines that the agency fails to substantiate its rating of an employee, the arbitrator has the discretion to direct the agency to cancel the disputed rating and to grant the employee the rating to which he or she is entitled based on the evidence.

In this case, the Arbitrator found that the Agency did not provide a reasonable explanation, valid reason or documentation for rating the employee's performance as only having met the standards for the tasks numbered 20, 40, 72, and 111. Moreover, based on the evidence before him of the employee's actual performance of those tasks as described by her supervisor in the disputed appraisal and in progress reviews during the rating period, the Arbitrator found that the employee's performance exceeded the standards and that she should have been rated accordingly. Thus, the Arbitrator clearly determined that the Agency had failed to substantiate its ratings of the employee's performance and that the evidence supported higher ratings under the established standards.

In these circumstances, I find, based on my opinion in Warner - Robins, that the Arbitrator's award directing the Agency to grant the employee the ratings and summary appraisal to which she was entitled is not deficient under the Statute. In my view, therefore, the Agency's exceptions should be denied.

Issued, Washington, D.C., September 15, 1987.

Jean McKee, Member [ v28 p 6]

FOOTNOTES

Footnote 1 Member McKee's dissenting opinion follows this decision.

Footnote 2 In view of this decision, it is unnecessary to address the Agency's other exception to the award.

---