23:0259(32)AR - Mare Island Naval Shipyard and IFPTE Local 11 -- 1986 FLRAdec AR



[ v23 p259 ]
23:0259(32)AR
The decision of the Authority follows:


 23 FLRA No. 32
 
 MARE ISLAND NAVAL SHIPYARD
 Activity
 
 and
 
 INTERNATIONAL FEDERATION OF
 PROFESSIONAL AND TECHNICAL
 ENGINEERS, LOCAL 11, AFL-CIO-CLC
 Union
 
                                            Case No. 0-AR-1105
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Thomas Angelo 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.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    In his initial award the Arbitrator ruled that the grievant's
 performance had been improperly rated as "marginal" under critical
 elements 3, 5, and 7 in her annual performance appraisal.  As a remedy
 the Arbitrator voided the appraisal and ordered the grievant's
 performance under those elements reevaluated.  In particular, he ordered
 her performance under elements 3 and 5 reevaluated because he determined
 that the rating was based only on events during two months of the
 twelve-month appraisal period and did not properly consider her
 performance under another supervisor earlier in the appraisal period.
 The Arbitrator also retained jurisdiction to resolve any disputes
 regarding the remedy.  According to the Activity, in reevaluating the
 grievant's performance under the three elements, both of her supervisors
 for the period met and reconsidered her performance for the entire
 appraisal period after which it was determined that her performance
 under elements 3 and 5 was "marginal;" that her performance under
 element 7 was "satisfactory;" and that her overall rating was
 "marginal." Subsequently, pursuant to his retained jurisdiction, the
 Arbitrator "refine(d)" his initial award.  In his "refinemen(t)" he
 determined that the "marginal" ratings on reevaluation under elements 3
 and 5 were not "sufficient(ly) support(ed)" or "justifi(ed)." On this
 basis he directed that the grievant's performance be rated
 "satisfactory" under elements 3 and 5 and that the grievant's overall
 rating be reevaluated accordingly.
 
                              III.  EXCEPTION
 
    The Agency contends that the Arbitrator's refinement of his award to
 direct that the grievant's performance under the two disputed elements
 be reevaluated as satisfactory is contrary to section 7106(a)(2)(A) and
 (B) of the Statute.  The Agency argues that by directing that the
 grievant be rated satisfactory, the Arbitrator improperly conducted an
 independent evaluation of the grievant's performance and improperly
 substituted his judgment for that of management as to what the
 grievant's evaluation and rating should be.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We agree with 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.  See, for example,
 Veterans Administration Hospital, Bath, New York and American Federation
 of Government Employees, Local 491, 22 FLRA No. 103 (1986).  The
 Authority has 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.  In sustaining the grievance, the arbitrator as a
 remedy may direct that the grievant's work product as appraised by
 management be granted the rating to which entitled under the established
 elements and standards.  The Authority, however, has cautioned that the
 arbitrator may not conduct an independent evaluation of an employee's
 performance under the elements and standards established by management
 and 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 the award is deficient by directing that
 the grievant's performance be rated "satisfactory" under elements 3 and
 5 and that the grievant's overall rating be reevaluated accordingly.  In
 directing these ratings the Arbitrator has not merely and appropriately
 granted the grievant's work product as appraised by management the
 rating to which entitled under the established standards.  Instead, the
 Arbitrator rejected as not sufficiently supported or justified
 management's reevaluation of the grievant's performance and directed
 that her performance be evaluated as "satisfactory." The Arbitrator
 independently evaluated the grievant's performance and substituted his
 judgment for that of management as to what the grievant's performance
 evaluation and rating under the established standards of elements 3 and
 5 should have been.  Consequently, the award, as refined, is contrary to
 section 7106(a)(2)(A) and (B) of the Statute.  See 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).
 
                               V.  DECISION