22:1063(103)AR - VA Hospital, Bath, NY and AFGE Local 491 -- 1986 FLRAdec AR

[ v22 p1063 ]
The decision of the Authority follows:

 22 FLRA No. 103
                                            Case No. 0-AR-1065
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on an exception to the award of
 Arbitrator Judith A. LaManna filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
    For the appraisal period of 1984-85, the grievant received an overall
 performance rating of minimally satisfactory.  He filed a grievance that
 was ultimately submitted to arbitration claiming that his performance
 appraisal was procedurally improper.  Noting that the Activity conceded
 that the grievant had been improperly evaluated in violation of the
 collective bargaining agreement, the Arbitrator stated the issue to be
 one of remedy.  As the remedy for the violation, the Arbitrator directed
 that the Activity reevaluate properly the grievant's performance for the
 disputed appraisal period and issue to the grievant a performance rating
 for the period of fully satisfactory or higher.
                              III.  EXCEPTION
    As its exception the Agency contends that the award is contrary to
 section 7106(a) of the Statute.  The Agency agrees that under the
 decisions of the Authority, the Arbitrator appropriately found that the
 grievant had not been properly rated and appropriately directed that
 management reevaluate properly the grievant's performance under the
 established elements and standards.  However, the Agency maintains that
 by additionally ordering that the grievant's rating be no less than
 fully satisfactory, the award to that extent is contrary to management's
 rights under section 7106(a)(2)(A) and (B) of the Statute.
                       IV.  ANALYSIS AND CONCLUSIONS
    As noted by the Agency, the Authority in a number of recent decisions
 has discussed in detail the role of an arbitrator in resolving disputes
 pertaining to performance appraisal matters.  General Services
 Administration, Region 10 and American Federation of Government
 Employees, Council 236, 22 FLRA No. 8 (1986);  Social Security
 Administration, Office of Hearings and Appeals, Region II and American
 Federation of Government Employees, Local 1760, 21 FLRA No. 86 (1986);
 Bureau of Prisons, Department of Justice and American Federation of
 Government Employees, Local 148, 21 FLRA No. 15 (1986);  Bureau of
 Engraving and Printing, U.S. Department of the Treasury and Washington
 Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA No. 39
 (1985).  As acknowledged by the Agency, the Authority in these decisions
 found that an arbitrator may resolve an employee's grievance claiming to
 have been 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 applied
 the standards in violation of law, regulation, or an appropriate
 provision of the parties' collective bargaining agreement.  The
 Authority also has stated that in sustaining the grievance, an
 arbitrator as a permissible remedy may direct that the grievant's work
 product be properly evaluated by management.  The Authority, however,
 has cautioned in these decisions that the arbitrator may not substitute
 his or her own judgment for that of management as to what that
 employee's evaluation and rating should be.
    In this case we find that by directing the Activity to rate the
 grievant's performance no lower than fully satisfactory, the Arbitrator
 improperly substituted her judgment for that of management as to what
 the grievant's performance evaluation and rating should be.  Although
 the Arbitrator properly ordered the grievant reevaluated in accordance
 with the established performance element