26:0246(30)AR - AFGE Local 2092 and VA Medical Center, Ann Arbor, MI -- 1987 FLRAdec AR
[ v26 p246 ]
The decision of the Authority follows:
26 FLRA No. 30 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2092 Union and VETERANS ADMINISTRATION MEDICAL CENTER, ANN ARBOR, MICHIGAN Activity Case No. 0-AR-1237 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator David T. Borland and filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. II. Background and Arbitrator's Award The grievance protested the changes made and lower ratings given by a second line supervisor after the four grievants had discussed and signed their performance appraisals with their immediate supervisor. According to the Arbitrator, in April 1986 each of the four grievants reviewed, discussed, indicated that he did not wish to respond, and signed his own performance appraisal form. The performance appraisal forms had been completed for each grievant and signed by their first line supervisor on that same date. Thereafter, the forms were reviewed and signed by the Chief of the Supply Service during the first week in May 1986. The Chief of the Supply Service made some additional comments on the form for each grievant and reduced the rating category for three of the grievants by one level. The one grievant whose rating was not reduced also received, attached to his performance appraisal form, a memo from the Chief indicating an error in the processing of forms that needed to be addressed "to ensure your continued highly satisfactory performance." The grievants then received a copy of the form from their first line supervisor. A group grievance was filed, objecting to the changes and the lower ratings made by the Chief of the Supply Service after the performance appraisal forms had been signed by the employees and their immediate supervisor. The grievance cited violations of the parties' master agreement, as well as violations of 5 U.S.C. Section 4302 and 5 C.F.R. Section 430.204. The grievants requested that the additional comments and lower ratings by the Chief be rescinded and that the ratings of the first line supervisor remain unchanged. The grievance was submitted to arbitration. The parties stipulated the issue before the Arbitrator as follows: Did the Agency violate the Master Agreement, the Code of Federal Regulations, or the Agency's policies and rules, when a Service Chief changed or down rated the performance appraisals of four employees? If the answer to that question is in the affirmative, what would be the appropriate remedy? The Arbitrator found that the controlling document was the Code of Federal Regulations and ruled that the Activity violated 5 C.F.R. Section 430.204(O) by informing the grievants of their ratings prior to approval by a higher level reviewer. He found that the Chief improperly changed or downgraded the performance appraisal of the four employees in the circumstances presented and sustained the grievance. As his award, the Arbitrator stated: The Performance Appraisals of April, 1986, for the four Grievants as determined by their Supervisor and communicated to them on April 22, 1986 are to become their sole and official performance statuses as of that date for their annual evaluations. All references or documents relating to any other final evaluation or appraisal for the April 1, 1985 -- March 31, 1986 period are to be expunged from the records of the Agency and from the personnel records of these four employees forthwith. III. EXCEPTIONS A. Contentions The Agency contends that the award violates management's right to assign work under section 7106(a)(2) of the Statute. Specifically, the Agency contends that the Arbitrator improperly substituted his judgment for that of management as to what the employees' performance evaluations and ratings should be. The Agency also contends that the award precludes the reviewing official, an individual not in the bargaining unit, from carrying out the assigned duty of reviewing performance appraisals, so as to deprive him of the discretion to change appraisals inherent in that duty. B. Analysis and Conclusion We agree with the Agency. In a number of recent decisions we have discussed the role of an arbitrator in resolving disputes related to performance appraisal matters. For example, in Federal Prison System, U.S. Medical Center for Federal Prisoners and American Federation of Government Employees, 23 FLRA No. 53 (1986), we held that an arbitrator may sustain a grievance over the improper application of the performance appraisal system by management and as a remedy may direct that the grievant's work product be reevaluated. However, the arbitrator may not substitute his or her judgment for that of management as to what the grievant's evaluation and rating should be. It has also been established that an arbitrator may not render an award in performance appraisal cases which precludes a reviewing official, an individual not in the bargaining unit, from carrying out the assigned duty to review and, if necessary, change performance appraisals. American Federation of Government Employees, Local 1509, Sioux Falls, South Dakota Veterans Hospital and U.S. Veterans Administration Hospital, Sioux Falls, South Dakota, 23 FLRA No. 4 (1986). Applying these principles in this case, we find that the Arbitrator's award directing that the appraisals given the grievants by the first line supervisor be restored is deficient. First, the Arbitrator has substituted his judgment for that of the reviewing official as to what the final rating of the grievants should be. Second, by changing the ratings, the Arbitrator has precluded the reviewing official from carrying out the assigned duty of reviewing performance appraisals, including the inherent power to change those appraisals if necessary. Consequently the award is deficient as contrary to section 7106(a)(2)(A) and (B) of the Statute and must be modified. IV.