23:0372(53)AR - Federal Prison System, Medical Center for Federal Prisoners and AFGE Local 1612 -- 1986 FLRAdec AR



[ v23 p372 ]
23:0372(53)AR
The decision of the Authority follows:


 23 FLRA No. 53
 
 FEDERAL PRISON SYSTEM
 U.S. MEDICAL CENTER FOR
 FEDERAL PRISONERS
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1612
 Union
 
                                            Case No. 0-AR-1106
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator William Stix filed by the Agency under section 7122(a) of the
 Federal Service Labor-Management Regulations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                   II.  BACKGROUND AND ARBITRATORS AWARD
 
    A grievance was filed and submitted to arbitration on the substantive
 issue of whether the grievant was properly accorded an overall annual
 performance appraisal rating of "fully successful" rather than "exceeds"
 for the appraisal period ending March 31, 1985.  The Arbitrator
 determined that the reviewing official failed to meet his responsibility
 under the performance appraisal regulation to review the grievant's
 rating for consistency with the rating given other employees.  In
 particular, the Arbitrator determined that in the rating process of
 formulating performance ratings for the appraisal period in dispute, the
 grievant was unfairly discriminated against because the evidence showed
 that the grievant had been evaluated under standards different from
 those applied to other employees.  Accordingly, as his award, the
 Arbitrator directed that the grievant's performance be reevaluated.  In
 addition, he directed that the reevaluation be in accordance with an
 elaborate process that he specified in his award.  In sum, the process
 provides for the selection, by a method specified by the Arbitrator, of
 a sample of five performance appraisals in which the appraised employee
 was rated "exceeds" for the appraisal period in dispute and provides for
 the comparison by the grievant's appraisal with the sample appraisals.
 In addition, it provides that the grievant's rating must be reevaluated
 solely by a comparison with the samples and requires under certain
 circumstances that the grievant's rating must be changed to "exceeds."
 
                             III.  EXCEPTIONS
 
    In its exceptions the Agency contends that the award is deficient by
 sustaining the grievance and by directing that the grievant be
 reevaluated in accordance with the procedure specified by the
 Arbitrator.  Specifically, the Agency primarily argues that the award is
 contrary to section 7106(a)(2)(A) and (B) of the Statute because the
 Arbitrator has substituted his judgment for that of management in the
 area of performance appraisal and has fashioned a remedy without basis
 in law, regulation, or the parties' collective bargaining agreement.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    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.  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).  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 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.  The
 Authority, however, has cautioned that an arbitrator may not 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, the Authority has repeatedly held that the arbitrator may
 not substitute his or her own judgment for that of management as to what
 the grievant's evaluation and rating should be.  The Authority has also
 held that section 7106(a)(2)(A) and (B) encompass 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 decisions to this case, we conclude contrary to the
 argument of the agency that the Arbitrator properly sustained the
 grievance and properly ordered the grievant reevaluated on finding that
 the grievant's appraisal was not reviewed for consistency with other
 appraisals, as required by the performance appraisal regulation, and
 that in the rating process, the grievant was unfairly discriminated
 against by having been evaluated under different standards from those
 applied to other employees.  However, in agreement with the Agency, we
 conclude that the process prescribed by the Arbitrator for reevaluation
 of the grievant's performance is contrary to section 7106(a)(2)(A) and
 (B) of the Statute.  By requiring that the grievant's performance must
 be reevaluated solely by comparison with a sample of five appraisals
 selected under a precise method prescribed by the Arbitrator, the award
 interferes with management's right to determine the method by which it
 will evaluate an employee's work performance.  Likewise, by specifying
 the circumstances under which the grievant's performance must be
 reevaluated as "exceeds," the Arbitrator improperly substituted his
 judgment for that of management as to what the grievant's performance
 evaluation and rating should be.  Accordingly, this portion of the award
 is deficient and must be modified.
 
                               V.  DECISION
 
    For these reasons, the Arbitrator's award is modified by striking
 paragraphs 3 and 4 and substituting the following language as paragraph
 3:  /*/
 
          3.  To remedy the discrimination, management shall reevaluate
       the grievant's performance for the appraisal period in dispute
       under the established elements and standards and in accordance
       with the general performance appraisal system as contained in
       Program Statement 3430.7.
 
    Issued, Washington, D.C. September 23, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member