Social Security Administration (Agency) and American Federation of Government Employees, Social Security Administration, Local 1923, AFL-CIO (Union)

 



[ v07 p544 ]
07:0544(82)AR
The decision of the Authority follows:


 7 FLRA No. 82
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 SSA, LOCAL 1923, AFL-CIO
 Union
 
                                            Case No. O-AR-66
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY ON
 EXCEPTIONS TO THE AWARD OF ARBITRATOR LOUIS ARONIN FILED BY THE AGENCY
 UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE) /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS CASE AROSE WHEN THE
 GRIEVANT CHALLENGED HIS PERFORMANCE EVALUATION FOR THE RATING PERIOD IN
 QUESTION, CLAIMING HE SHOULD HAVE RECEIVED AS TO WORK PRODUCT A "D" ON
 QUANTITY AND AN "E" ON QUALITY INSTEAD OF THE "C" RATINGS WHICH HE
 RECEIVED.  /2/ THE GRIEVANCE WAS NOT RESOLVED AND WAS SUBMITTED TO
 ARBITRATION UNDER THE SUPPLEMENTAL ARBITRATION PROVISION OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.
 
    THE ARBITRATOR STATED THE ISSUE TO BE WHETHER THE GRIEVANT WAS
 PROPERLY RATED "C" ON BOTH QUANTITY AND QUALITY.  HOWEVER, BECAUSE THE
 GRIEVANT WAS ON LIGHT DUTY DURING THE RATING PERIOD IN ACCORDANCE WITH A
 MEDICAL CERTIFICATE AND BECAUSE IT WAS ESTABLISHED THAT THE ACTIVITY HAD
 A PRACTICE OF NOT RATING EMPLOYEES ON LIGHT DUTY HIGHER THAN "C" ON
 QUANTITY AND QUALITY OF WORK PRODUCT, THE ARBITRATOR CONSIDERED THE
 GRAVAMEN OF THIS CASE TO BE WHETHER THE GRIEVANT'S DISPUTED RATINGS WERE
 BASED ON HIS ACTUAL PRODUCTION OR ON THE RATING PRACTICE WITH RESPECT TO
 EMPLOYEES ON LIGHT DUTY.
 
    AS TO THE GRIEVANT'S ACTUAL PRODUCTION, THE ARBITRATOR FOUND, BASED
 UPON EVIDENCE RELATING TO SPOT CHECKS OF THE GRIEVANT'S WORK BY HIS
 SUPERVISOR, THAT THE GRIEVANT'S RATING OF "C" ON QUANTITY OF WORK
 PRODUCED FOR THE RATING PERIOD WAS INCORRECT GIVEN THE AGENCY'S
 QUANTITATIVE STANDARDS FOR THE WORK THE GRIEVANT PERFORMED.  HE FOUND
 FURTHER THAT THE GRIEVANT'S PRODUCTION PROPERLY RATED A "D".
 CONSEQUENTLY, THE ARBITRATOR CONCLUDED THAT THE FAILURE TO RATE THE
 GRIEVANT "D" IN QUANTITY WAS BASED ON THE PRACTICE OF LIMITING THE
 RATINGS OF EMPLOYEES WHO WERE ON LIGHT DUTY.  HE DETERMINED THAT SUCH A
 PRACTICE, RATHER THAN ONE WHICH EVALUATED EMPLOYEES ON THEIR ACTUAL
 PERFORMANCE, WAS INCONSISTENT WITH THE OBJECTIVES AND PURPOSES OF
 PERFORMANCE APPRAISAL PROCEDURES CONTAINED IN THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  FINDING THE PRACTICE OF SO APPLYING THE STANDARD
 TO THE GRIEVANT TO BE INVALID AS ARBITRARY AND DISCRIMINATORY, THE
 ARBITRATOR, ON THE BASIS OF THE GRIEVANT'S ACTUAL PRODUCTION, ORDERED
 THE GRIEVANT'S RATING ON QUANTITY OF WORK PRODUCT CHANGED TO "D".
 
    AS TO THE RATING WITH RESPECT TO THE QUALITY OF THE GRIEVANTS' WORK,
 THE ARBITRATOR STATED THAT THERE WAS NO EVIDENCE AS TO THE STANDARDS ON
 WHICH QUALITY IS RATED AND FOUND, THEREFORE, THAT THERE WAS NO BASIS IN
 THE RECORD FOR DETERMINING THE PROPER RATING AS TO QUALITY.  HOWEVER, IN
 VIEW OF THE GRIEVANT'S QUANTITY RATING, THE ARBITRATOR CONCLUDED THAT
 THE SAME IMPROPER PRACTICE MAY HAVE BEEN USED TO DETERMINE THE RATING ON
 QUALITY OF WORK.  THERFORE, THE ARBITRATOR DIRECTED THE ACTIVITY TO
 EVALUATE THE QUALITY OF THE GRIEVANT'S WORK PRODUCT BASED ON THE SPOT
 CHECKS MADE DURING THE PERIOD AND TO REVISE THE GRIEVANT'S RATING, IF
 APPROPRIATE.  IN THIS RESPECT HE RETAINED JURISDICTION AND STATED THAT
 EITHER PARTY COULD REQUEST THAT THE MATTER BE REOPENED IF NO AGREEMENT
 COULD BE REACHED ON THE GRIEVANT'S QUALITY RATING.
 
    AS ONE OF ITS EXCEPTIONS THE AGENCY CONTENDS THAT THE AWARD IS
 CONTRARY TO SECTION 7106(A) OF THE STATUTE.  SPECIFICALLY, THE AGENCY
 ARGUES THAT BY FINDING THE ACTIVITY'S PRACTICE OF LIMITING THE RATINGS
 OF EMPLOYEES ON LIGHT DUTY UNSUITABLE, THE AWARD CONFLICTS WITH
 MANAGEMENT'S RIGHT UNDER THE STATUTE TO RATE AND EVALUATE ITS EMPLOYEES.
  HOWEVER, THE AGENCY HAS FAILED TO DEMONSTRATE THAT THE AWARD IS IN ANY
 MANNER CONTRARY TO SECTION 7106(A) OF THE STATUTE.  ALTHOUGH THE
 AUTHORITY HAS HELD THAT AGENCY MANAGEMENT HAS THE RIGHT UNDER SECTION
 7106(A)(2)(A) AND (B) TO DETERMINE THE CONTENT OF PERFORMANCE STANDARDS,
 THE AUTHORITY HAS ALSO HELD THAT THE ESTABLISHMENT OF CRITERIA, E.G.,
 "FAIR AND EQUITABLE," BY WHICH THE APPLICATION OF PERFORMANCE STANDARDS
 TO AN EMPLOYEE MIGHT SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE IS NOT
 INCONSISTENT WITH THE RIGHTS OF MANAGEMENT UNDER SECTION 7106(A).
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
 OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980).
 IN TERMS OF THIS CASE, RATHER THAN DENYING MANAGEMENT ITS RIGHT TO
 DETERMINE THE CONTENT OF ITS PERFORMANCE APPRAISAL STANDARDS OR
 REQUIRING IT TO CHANGE ITS STANDARDS, THE ARBITRATOR, CONSISTENT WITH
 THE AUTHORITY'S DECISION IN AFGE LOCAL 32, EVALUATED THE ACTIVITY'S
 PRACTICE OF LIMITING THE RATING OF EMPLOYEES ON LIGHT DUTY AS APPLIED TO
 THE GRIEVANT AND FOUND IT TO BE ARBITRARY AND DISCRIMINATORY.
 CONSEQUENTLY, THE AWARD DOES NOT CONFLICT WITH RIGHTS OF MANAGEMENT
 UNDER SECTION 7106(A) AND THIS EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT.
 
    IN A SECOND AND THIRD EXCEPTION THE AGENCY ESSENTIALLY CONTENDS THAT
 THE AWARD IS DEFICIENT BECAUSE IT IS BASED ON NONFACTS AND IS NOT BASED
 ON EVIDENCE INCLUDED AT THE HEARING.  IN SUPPORT OF T