26:0137(15)AR - SSA and AFGE Local 1122 -- 1987 FLRAdec AR



[ v26 p137 ]
26:0137(15)AR
The decision of the Authority follows:


 26 FLRA No. 15
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES 
 LOCAL 1122, AFL-CIO
 Union
 
                                            Case No. 0-AR-1278
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator William C. Hern filed by the Agency under section 7122(a) of
 the Federal Labor-Management Relations Statute (the Statute), and part
 2425 of the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    A grievance was filed concerning the performance evaluation of an
 individual.  It appears that the Union was contesting certain aspects of
 the evaluation process as it was applied to the grievant and the rating
 given to the grievant on a particular element of performance, GJT #15.
 /1/ The Union argued more specifically that the rating for that element
 should be changed to "Level 3."
 
    The Arbitrator determined that the rating of "Fully Satisfactory" on
 GJT #15 (apparently Level 2), should be maintained except for the
 following:
 
          1.  In making a decision on any cash award for which (the
       grievant) might have been eligible the awarding body shall
       consider the rating on GUT #15 to be Level 3;  and
 
          2.  In any promotion examination for which (the grievant) files
       in which GJT #15 is a critical element, the reviewing body shall
       consider the rating to be Level 3.
 
                         III.  AGENCY'S EXCEPTIONS
 
    The Agency excepts to the award for two reasons.  First, the Agency
 argues that the award is contrary to section 7106(a)(2)(A) and (B) of
 the Statute because the Arbitrator substituted his judgment for that of
 management in determining what the grievant's rating should be.  Second,
 the Agency argues that the award is contrary to 5 U.S.C. Section
 4302(a)(3), which concerns the purposes that are served by an agency's
 performance appraisal system.  The Agency notes that under 5 U.S.C.
 Section 4302(a)(3) and the parties' collective bargaining agreement,
 performance appraisals are used as a basis for taking such personnel
 actions as:  training, rewarding, reassigning, promoting, reducing in
 grade, retaining, removing employees, and granting within-grade
 increases.  The Agency contends the Arbitrator's decision to raise the
 rating for certain purposes was not explained and is inconsistent with
 the agreement and the cited authority.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    In recent decisions we have discussed the role of an arbitrator in
 resolving disputes pertaining to performance appraisal matters.  Social
 Security Administration and American Federation of Government Employees,
 Local Union 1923, 25 FLRA No. 37 (1987);  Federal Prison System, U.S.
 Medical Center for Federal Prisoners and American Federation of
 Government Employees, Local 1612, 23 FLRA No. 53 (1986).  We found that
 an arbitrator may resolve grievances over whether an employee was
 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.  An arbitrator may not, however, 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, an arbitrator may not substitute his or her own judgment for
 that of management as to what the grievant's evaluation and rating
 should be.
 
    Applying these principles to this case, we conclude in agreement with
 the Agency that the Arbitrator improperly substituted his 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.  Performance
 evaluations, or appraisals, form the basis for management determinations
 on a variety of personnel actions, as noted by the Agency.  In directing
 that the grievant's rating on GJT #15 be considered as Level 3 for
 certain purposes, the Arbitrator has essentially changed the evaluation
 for those purposes.  Thus, where the grievant is being considered for a
 cash award or where consideration is being given in certain promotion
 actions, the evaluation is altered by raising the rating on GJT #15 to
 Level 3.  The Arbitrator has therefore substituted his own judgment for
 that of management in determining what the evaluation will be.
 
                               V.  DECISION
 
    Accordingly, the Arbitrator's award is set aside as contrary to
 section 7106(a)(2)(A) and (B) of the Statute.  /2/
 
    Issued, Washington, D.C., March 12, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
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