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25:0513(37)AR
The decision of the Authority follows:
25 FLRA No. 37
SOCIAL SECURITY ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL UNION 1923
Union
Case No. 0-AR-1186
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Donald W. Jarrell 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
A grievance was filed protesting the grievant's performance rating
for Generic Job Task (GJT) 1, which is entitled "adjudicates claims,"
and requesting that the rating be raised to the next highest level. The
grievance was submitted to arbitration on the issue of whether the
grievant was rated in accordance with the parties' collective bargaining
agreement.
The Arbitrator determined that the grievant's appraisal was arbitrary
and in violation of the parties' agreement. Specifically, he found, in
agreement with the Union, that the Agency had not defined " timeliness"
in the performance standards for GJT 1 so that the grievant's
performance could be accurately evaluated. Moreover, he noted that the
grievant's immediate supervisor was confused about the specific
standards to be applied in measuring performance under GJT 1. In this
regard, he determined that the supervisor had mistakenly applied the
elements of another GJT relating to technical assistance on cases in
rating her performance under GJT 1. He also agreed with the Union that
her supervisor had used comparative standards, in violation of the
parties' agreement. In other words, the supervisor had compared the
grievant's GJT 1 performance with that of other employees' performance
rather than with generic job task standards designed to specifically
measure the adequacy of GJT 1 work. The Arbitrator finally found that
the grievant's supervisor had erroneously evaluated her performance by
considering the proportion of aged cases in her case backlog and by
failing to recognize the extra work she performed. This last factor was
crucial because it was the sole reason the grievant was not rated at a
higher level for her performance of GJT 1 tasks. The Arbitrator then
determined, primarily on the basis of the grievant's performance of
extra claims adjudicator work, that the grievant's performance rating
should have been rated at a higher level. Consequently, the Arbitrator
sustained the grievance and as his award directed the Agency to "change
its appraisal of grievant's performance on GJT 1 from level 2 to level 3
and to change its summary appraisal accordingly from fully satisfactory
to excellent."
III. EXCEPTION
A. Contentions of the Agency
As its exception the Agency contends that the award is contrary to
section 7106(a)(2)(A) and (B) of the Statute. Specifically, the Agency
argues that to the extent that the Arbitrator's award directs the
invalidation of the grievant's performance rating, based upon his
evaluation of the relative importance of job tasks and levels of
achievement, it interferes with management's rights to assign work and
direct employees by substituting his judgment regarding performance
criteria for that of the Agency. The Agency maintains that, at most,
the Arbitrator should have merely directed the Agency to reevaluate the
grievant's performance and not have unilaterally changed it.
B. Opposition of the Union
In its opposition the Union contends that the Agency waived its
rights to file exceptions to arbitrators' awards in expedited
arbitrations and since this grievance was resolved under the expedited
arbitration procedure it can not do so in this instance. The Union also
asserts that the Agency misconstrues the basis for the Arbitrator's
award. It maintains that the award was based primarily upon the
Arbitrator's findings regarding the grievant'sperformance of extra work.
Consequently, his award is not deficient and is within the purview of 5
U.S.C. Section 4302, relating to the establishment of performance
appraisal systems, and the parties' contract.
IV. ANALYSIS AND CONCLUSIONS
Initially, we confirm that the Agency's exception is properly before
the Authority for decision. 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.
Social Security Administration and American Federation of Government
Employees, Local 1923, 22 FLRA No. 66 (1986); Social Security
Administration and American Federation of Government Employees, AFL-CIO,
16 FLRA 552 (1984).
In recent decisions we have discussed in detail the role of an
arbitrator in resolving disputes pertaining to performance appraisal
matters. Federal Prison System, U.S. Medical Center for Federal
Prisoners and American Federation of Government Employees, Local 1612,
23 FLRA No. 53 (1986); Mare Island Naval Shipyard and International
Federation of Professional and Technical Engineers, Local 11,
AFL-CIO-CLC, 23 FLRA No. 32 (1986); Veterans Administration Hospital,
Bath, New York and American Federation of Government Employees, Local
491, 22 FLRA No. 103 (1986) (and cases cited in the decision). We found
that an arbitrator may resolve grievances over whether an employee was
adversely affected in his or her performance appraisal by management's
application of the established performance standards. An arbitrator may
sustain the grievance on finding that management had not applied the
standards which it established to the grievant or had applied the
standards in violation of law, regulation, or an appropriate provision
of the parties' collective bargaining agreement. In sustaining the
grievance, the arbitrator may direct that the grievant's work product be
properly evaluated. An arbitrator may not, however, substitute his or
her own judgment for that of management in the exercise of the rights
under section 7106(a)(2)(A) and (B) to direct employees and assign work
as such rights pertain to matters of performance appraisal. In
particular, an arbitrator may not substitute his or her own judgment for
that of management as to what the grievant's evaluation and rating
should be. We have also held that section 7106(a)(2)(A) and (B)
encompasses the right to determine the methods to be used in evaluating
employee work performance. American Federation of Government Employees,
Local 1760, AFL-CIO and Department of Health and Human Services, Social
Security Administration, 23 FLRA No. 21 (1986) (proposals 2-6).
Applying these principles to this case, we conclude in agreement with
the Agency that the Arbitrator improperly substituted his own judgment
for that of management in the exercise of the rights under section
7106(a)(2)(A) and (B) to direct employees and assign work. The
Arbitrator conducted an independent evaluation of the grievant's
performance under the elements and standards established by management
and substituted his judgment for that of management as to what that
employee's evaluation and rating should have been. In directing that
the grievant's overall rating be raised to level 3, the Arbitrator did
not merely grant the grievant's work product as appraised by management
the rating to which it was entitled under the established standards.
Instead, the Arbitrator rejected management's appraisals and substituted
his judgment for that of management as to what constituted the proper
application and weight to be given various job elements, including what
constituted the performance of extra work as contemplated under GJT 1.
V. DECISION
For these reasons, we find that the Arbitrator's direction that the
Agency change its appraisal of grievant's performance on GTR 1 from
level 2 to level 3 and to change her summary appraisal from fully
satisfactory to excellent is contrary to section 7106(a) of the Statute
and must be modified. Accordingly, the award is modified to provide, as
follows:
The grievance is sustained. The Agency is directed to
reevaluate in accordance with the parties' collective bargaining
agreement the grievant's performance on GTR 1 for the appraisal
period in dispute.
Issued, Washington, D.C., February 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY