34:0323(62)AR - HEALTH AND HUMAN SERVICES SSA and AFGE, LOCAL 1122 -- 1990 FLRAdec AR

34 FLRA NO. 62



         U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
                SOCIAL SECURITY ADMINISTRATION

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                          LOCAL 1122

                           0-AR-1617

			    DECISION

                        January 17, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Joe H. Henderson. The Arbitrator ordered the
grievant's performance appraisal rating for Generic Job Task
(GJT) #111 changed from fully satisfactory (level 2) to excellent
(level 3). The Social Security Administration (the Agency) filed
exceptions under section 7122(a) of the Federal Service Labor -
Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The American Federation of
Government Employees, AFL - CIO, Local 1122 (the Union) did not
file an opposition to the exceptions.

     We conclude that the award is unclear as to whether the
Arbitrator correctly applied the Authority's decision in Social
Security Administration and American Federation of Government
Employees, AFL - CIO, 30  FLRA  1156 (1988) (Social Security
Administration). Therefore, we remand the Arbitrator's award to
the parties to have them obtain a clarification and
interpretation of the award.

II. Background and Arbitrator's Award

     This case arose as a result of a grievance by a Benefit
Authorizer in which he asserted that the Agency did not
properly appraise him. The grievant was rated at a level 2 in GJT
#111, "Identifies and Resolves Case Discrepancies", for the
period from October 1, 1986, to September 30,  1987. The grievant
alleged that the Agency should have rated him at level 3. Award
at 3. When the grievance was not resolved, the parties selected
an arbitrator.

     The issue presented to the Arbitrator was:

     Has management applied the established elements and
standards in violation of law, regulation, or Articles of the
National Agreement, in its rating of (the grievant) for GJT #111
for the period October 1, 1986 through September 30,  1987? If
so, what should be the lawful remedy?

     Award at 2.

     The GJT #111 performance standard states that at level 3 an
employee "(c)onsistently resolves in an independent manner a
majority of technical issues, though very occasionally, requires
assistance with complex issues." Agency Enclosure No. 1 at 1.
This evaluation is to be determined "(a)s evidenced by managerial
observation; audits and other pertinent feedback." Id.

     The Arbitrator noted that "the performance level and
accuracy rate of the individual being graded" must be 94 to 97
percent to be rated at level 3. Award at 7-8. Examining the
grievant's accuracy rating, the Arbitrator found that he had a
96.4 percent accuracy rate for the rating period. Id. at 8. The
Arbitrator concluded that the grievant had a level 3 accuracy
rating. Id.

     However, the Arbitrator also noted that the grievant's
supervisor testified that she considered other performance
indicators when evaluating an employee as well as the accuracy
rating. The Arbitrator stated that "(s)he looks at the overall
picture. From her observation, more weight is placed on the
anomalies and feedback." Id.

     The Arbitrator found that management defined anomalies as a
type of error. According to management's case review handbook,
errors which have an actual or potential effect on the payment of
social security benefits are identified as deficiencies. All
other errors are defined as anomalies. Award at 7. The Arbitrator
found that the grievant's supervisor advised the grievant in his
interview record of June 12, 1987, that he needed to reduce the
number of anomalies he received. Id. at 9. The grievant
had seven anomalies in the first quarter, eight in the second
quarter, one in the third quarter, and six in the fourth quarter.
The Arbitrator noted that there was "no numerical or percentage
stated on which one can relate the number of anomalies to the
expectations." Id. at 10. However, he found that the grievant
made an effort to reduce the number of anomalies after his
supervisor advised him to do so. Id. at 9.

     The Arbitrator also examined the grievant's "feedback"
record. Feedback refers to the assistance obtained by an employee
from resource persons in resolving case work issues. Id. at 6.
The Arbitrator found that the grievant's supervisor relied on her
observations and those of the module 3 manager to conclude that
the grievant "sought assistance (from) the BATA (resource
persons) more frequently than a level 3 should." Id. at 8.
According to the Arbitrator, the module 3 manager "indicated that
he frequently observed the Grievant talking to the BATA and
supervisory personnel and he noted mentally each time he observed
the Grievant seeking assistance and making trips to the BATA."
Id. at 9.

     The Arbitrator stated that management provided "no
documentation" or "statistical information" to indicate the
number of times the grievant sought assistance or the types of
questions he asked. Id. at 8 and 9. The Arbitrator noted that
"the Grievant testified that on some occasions he was socializing
with the BATA and was not asking questions regarding work." Id.
at 8. In addition, the Arbitrator stated that the grievant denied
management's statement that he visited the BATA at least once a
day for assistance. Id.

     The Arbitrator also found that the Agency did not have two
documented interviews in the grievant's file as required in
Article 21, section B, of the parties' collective bargaining
agreement. He noted that the grievant had an interview on March
13, 1987, but the report of that interview was lost. The
Arbitrator found that the grievant's supervisor stated in the
June 12 interview that the report of the June interview would act
as the two documented interviews. The Arbitrator concluded that
the Agency was able to have a second interview after June 12 and
document that interview to meet contractual requirements.
However, the Arbitrator found that the Agency made no attempt to
do so. Id. at 11-12. The Arbitrator concluded that the Agency
violated Article 21, section 7(B) "by not having two documented
progress interviews that were available to be placed in
the 7B file of the Grievant." Id. at 12. According to the
Arbitrator, management had sufficient time after the June 12,
1987, interview to have another interview before the end of the
rating period.

     The Arbitrator also noted that Article 21, section 3(c)
requires that "'standards will be established in such a way that
the performance can be accurately evaluated.'" Id. The Arbitrator
then stated:

     The assessment of the Grievant contacting the BATA and other
technical advisory personnel for assistance was not accurately
evaluated. There was no indication other than the undocumented
observations of the first line supervisor and the module manager
that the conversations took place. The Grievant was performing
above the expectations as to all other standards except those
perceived by the supervisor to be his conversations with the
BATA. I have commented above that these were not objective
standards but subjective standards involving the opinion of the
supervisor. Objective standards should be used.

     Id.

     The Arbitrator stated that if it were possible to have as
second documented interview, he would direct management to
reevaluate the grievant under the performance appraisal system
and the parties' agreement. However, the Arbitrator noted that
the evaluation period was past. Therefore, "in accordance with
the contract and prevailing cases," the Arbitrator directed the
Agency to grant the grievant a rating of level 3 in GJT #111 for
the period October 1, 1986 through September 30,  1987. Award at
13.

III. Exceptions

     The Agency contends that the Arbitrator's award violates
management's right to direct employees under section 7106(a)(2)
(A) of the Statute.

     In its first exception, the Agency asserts that the
Arbitrator violated section 7106(a)(2)(A) when he awarded the
grievant a level 3 rating. The Agency states that "(w)hile
rejecting management's determination as to the degree of
'independence' displayed by the grievant, the Arbitrator made no
determination as to what the record before him supported
in that regard." Agency's Exceptions at 4. According to the
Agency, the award is inconsistent with Social Security
Administration because the Arbitrator did not determine "to what
degree the employee worked independently." Id.

     The Agency argues in its second exception that the
Arbitrator exceeded his authority under Social Security
Administration and violated section 7106(a)(2)(A) by altering the
content of management's performance standards. In support, the
Agency notes that the performance standard for GJT #111 provides
that an employee's evaluation will be based in part on
supervisory observation. Id. at 6. The Agency contends that the
Arbitrator modified the content of that standard by "removing
(those) elements which (he) considered 'subjective.'" Id.

IV. Analysis and Conclusion

     In Social Security Administration, the Authority reexamined
the remedial authority of arbitrators in performance appraisal
matters. The Authority defined the approach that arbitrators must
use when examining an agency's application of a performance
standard to an employee. The Authority held that:

     when an arbitrator finds that management has not applied the
established elements and standards or that management has applied
the established elements and standards in violation of law,
regulation, or a properly negotiated provision of the parties'
collective bargaining agreement, the arbitrator may cancel the
performance appraisal or rating. When the arbitrator is able to
determine on the basis of the record presented what the rating of
the grievant's work product or performance would have been under
the established elements and standards, if they had been applied,
or if the violation of law, regulation, or the collective
bargaining agreement had not occurred, the arbitrator may direct
management to grant the grievant that rating. If the record does
not enable the Arbitrator to determine what the grievant's rating
would have been, the arbitrator should direct that the grievant's
work product or performance be reevaluated by management as
appropriate.

30  FLRA  at 1160-61. 

     Social Security Administration establishes a two-prong test.
First, an arbitrator must find that management has not applied
the established standards or has applied them in violation of
law, regulation, or a provision of the parties' collective
bargaining agreement. If that finding is made, an arbitrator may
cancel the grievant's performance appraisal or rating. Second, if
the arbitrator is able to determine based on the record what the
performance appraisal or rating would have been had management
applied the correct standard or if the violation had not
occurred, the arbitrator may order management to grant that
appraisal or rating. If the arbitrator is unable to determine
what the grievant's rating would have been, he must remand the
case to management for reevaluation. Internal Revenue Service,
Indianapolis District and National Treasury Employees Union,
Chapter 49, 32 FLRA  335 (1988).

     In this case, it is not clear whether the first prong of the
test in Social Security Administration is satisfied. The award is
ambiguous as to whether the Arbitrator found that the Agency
applied the established standard for GJT #111 in violation of a
properly negotiated provision of the parties' collective
bargaining agreement or whether the Arbitrator impermissibly
altered the content of the performance standard for GJT #111.

     The Arbitrator noted that Article 21, section 3(c) provided
that "'standards will be established in such a way that the
performance can be accurately evaluated.'" Award at 12. The
Arbitrator then stated "(t)he assessment of the Grievant
contacting the BATA and other technical advisory personnel for
assistance was not accurately evaluated. There was no indication
other than the undocumented observations of the first line
supervisor and the module manager that the conversations took
place." Id. This statement, and other similar findings by the
Arbitrator, could be interpreted to mean that management's
evidence concerning the grievant's ability to work independently
was insufficient to overcome the statistical evidence that the
grievant was performing as a level 3. If the Arbitrator reached
this conclusion, the first prong of the test in Social Security
Administration would be satisfied.

     However, the Arbitrator also stated "I have commented above
that these were not objective standards but subjective standards
involving the opinion of the supervisor. Objective standards
should be used." Id. This statement could be interpreted to find
that the Arbitrator was rejecting management's
established performance standard for GJT #111. If the Arbitrator
found that the performance standard did not comply with
applicable legal requirements, the appropriate remedy would be
for the Arbitrator to direct the Agency to establish a plan which
complies with applicable legal requirements in 5 U.S.C. 4302 and
5 C.F.R. Chapter 430. Newark Air Force Station and American
Federation of Government Employees, Local 2221, 30  FLRA  616,
636 (1987) (Newark). An arbitrator may not determine what the
content of an employee's plan should be and may not establish new
performance standards. Id. at 637. Therefore, if the Arbitrator
created a new standard by rejecting "managerial observation" as a
method of evaluating an employee's performance in resolving
technical issues independently, the Arbitrator's award would have
to be set aside under Social Security Administration and Newark.
After carefully reviewing the entire award, we are unable to
determine whether the Arbitrator found that the Agency misapplied
the performance standard for GJT #111 or whether he rejected
management's established performance standard.

     Assuming that the Arbitrator found that management applied
the GJT #111 performance standard in violation of law,
regulation, or a provision of the parties' collective bargaining
agreement, it is also unclear whether the Arbitrator's award
meets the second prong of the test in Social Security
Administration. We are uncertain whether the Arbitrator
determined, based on the record, what the grievant's rating would
have been if management had applied the established standard
appropriately. The Arbitrator found that the grievant had a 96.4
percent accuracy rating, which was within the 94 to 97 percent
required for a level 3 rating. Award at 8. The Arbitrator also
looked at the grievant's performance concerning the errors known
as anomalies. He noted that there was "no numerical or percentage
stated on which one can relate the number of anomalies to the
expectations." Id. at 10. The Arbitrator concluded that the
grievant made an effort to reduce his anomalies after his
supervisor advised him to do so. In conclusion, the Arbitrator
stated that "(t)he Grievant was performing above the expectations
as to all other standards except those perceived by the
supervisor to be his conversations with the BATA." Id. at 12. We
find that the award is unclear whether, based on the record
before him, the Arbitrator determined what the grievant's
performance rating in GJT #111 would have been had management
applied the performance standard correctly. 

     Because of the award's ambiguity, it is necessary to remand
the award to the parties for the purpose of seeking a decision
from the Arbitrator based on the Authority's decision in Social
Security Administration. The Arbitrator should state his finding
as to whether management has not applied the established
standards or whether management applied the GJT #111 standard in
violation of law, regulation, or the parties' collective
bargaining agreement. If the Arbitrator finds that management has
not applied the GJT #111 performance standard or applied the
standard in violation of law, regulation, or the agreement, the
Arbitrator may cancel the grievant's performance rating. If the
Arbitrator is able to determine, based on the record, what the
grievant's rating would have been had management applied the
standard appropriately, the Arbitrator may order management to
grant that appraisal or rating. 30  FLRA  at 1160-61.

V. Decision

     For the above reasons, the award is remanded to the parties
for the purpose of requesting that the Arbitrator clarify his
award in accordance with the requirements set forth in Social
Security Administration.