26:0860(101)AR - HCFA and AFGE, Local 1923 -- 1987 FLRAdec AR

 26 FLRA No. 101
 
 HEALTH CARE FINANCING ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1923
 Union
 
                                            Case No. 0-AR-1249
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Mollie H. Bowers 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 grievant is a management analyst in the Agency's Division of
 General Services.  The Arbitrator stated that the Division underwent a
 reorganization which affected the grievant on December 10, 1985.  /*/
 According to the Agency, there was no substantive change in the
 grievant's position description or in his performance standards and
 elements.  The grievant's position description after the reorganization
 was not signed by the Agency's Classification Specialist until May 9,
 1986.  On May 14, 1986, the grievant received a progress review, dated
 May 13, 1986, for the first quarter of 1986 (January 1 to March 31).
 The progress review rated the grievant as at the "Minimally
 Satisfactory/Partially Met" level of performance.  As a result, the
 grievant was placed under a formal performance improvement plan.
 
    A grievance was filed, claiming that the Agency had violated Article
 21, Section 4.B. of the collective bargaining agreement, which provides
 that "(p)erformance plans and standards may be established only for
 officially classified positions." The grievance sought as a remedy that
 the progress review be voided and that all other relief deemed
 appropriate be granted.
 
    Before the Arbitrator, the Union argued that the Agency had violated
 the parties' contract and that the first quarter progress review must
 therefore be nullified.  The Union asked for a "directed verdict" based
 on this alleged violation of the contract.  The Agency argues before the
 Arbitrator that since there had been no substantive change in the
 grievant's position description or his performance standards or
 elements, the confusion in processing the classification paperwork did
 not preclude a fair and accurate evaluation of the grievant's progress.
 After consideration of the evidence submitted into the record by the
 parties, the Arbitrator orally issued a "directed verdict" for the
 Union, and later put her decision in writing.  As her award, she ordered
 that "(t)he Grievant's progress review for the period January 1 to March
 31, 1986, shall be null and void."
 
                      III.  Positions of the Parties
 
                        A.  The Agency's Exceptions
 
    The Agency contends that the Arbitrator's award conflicts with
 applicable law and that the Arbitrator failed to afford the Agency a
 fair hearing.  Specifically, the Agency argues that the Arbitrator
 exceeded her authority by (1) denying the Agency its rights under
 section 7106(a) of the Statute to assess the grievant's performance for
 the first quarter, and (2) substituting her judgment for that of
 management as to what the grievant's evaluation and/or rating for the
 first quarter should be by in effect granting the grievant a "Fully
 Satisfactory" rating.  The Agency maintains that, at most, the
 Arbitrator should have directed the Agency to reevaluate the grievant's
 performance for the period January 1 to March 31, 1986.  Also, the
 Agency argues that the Arbitrator denied it a fair hearing because she
 issued a "directed verdict" without having taken the testimony of the
 Agency's "scheduled witnesses."
 
                        B.  The Union's Opposition
 
    The Union contends that the Agency cannot file exceptions in this
 instance because the Agency waived its right to file exceptions to
 arbitrators' awards in expedited arbitrations.  The Union also argues
 that the award negates only a progress review and does not in any way
 interfere with the Agency's right to assess the grievant's performance
 and render a performance rating or appraisal at the end of the rating
 period.  Finally, the Union argues that the Agency was not denied a fair
 hearing, since the Arbitrator proceeded properly under the procedures in
 the parties' contract for granting a "directed verdict."
 
                       IV.  Analysis and Conclusions
 
    Initially, we confirm that the Agency's exceptions are properly
 before us.  We have previously addressed and rejected the Union's
 argument that under t