28:0866(113)AR - AFGE, LOCAL 1815 VS ARMY, FORT RUCKER
[ v28 p866 ]
The decision of the Authority follows:
28 FLRA NO. 113
U.S. ARMY AVIATION CENTER AND FORT RUCKER FORT RUCKER, ALABAMA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1815 Union
Case No. 0-AR-1324
This matter is before the Authority on an exception to the award of Arbitrator George Munchus III filed by the Department of the Army (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. The Union filed an opposition.
The grievant is a flight instructor who received a performance rating of "fully successful" for the period ending February 25, 1986. He filed a grievance alleging that he was being "punished" for his union activities, including the filing of unfair labor practice charges against the Activity, by being downgraded from "exceptional" ratings which he had received in previous years.
At the second step of the grievance procedure, the Activity amended the ratings for job element numbers 2 and 5 to "exceeded," but this did not result in a change in the overall rating to "exceptional" as requested by the grievant.
The grievance was submitted to arbitration. The issue before the Arbitrator was whether the performance appraisal received by the grievant was applied in an inconsistent manner.
The Arbitrator determined that the Activity failed to apply consistently its job performance standards to the grievant as was required by the parties' agreement and Activity regulations. In particular, the Arbitrator determined that the Activity applied the standard in job element number 1, which related to a "checkride" examination consisting of a flight (hands on) and academic (oral) examination, to the grievant differently from the way in which it applied the standard to other employees in the same job classification. As his award, the Arbitrator ordered that the grievant be rated "exceeded" on element number 1 and "exceptional" overall for the appraisal period ending February 25, 1986.
The Agency argues that the Arbitrator's award conflicts with section 7106(a)(2)(A) and (B) of the Statute because the Arbitrator substituted his judgment for that of management as to what the grievant's evaluation and rating should be.
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 1122. AFL - CIO, 26 FLRA No. 15 (1987); Federal Prison System, U.S. Medical Center for Federal Prisoners and American Federation of Government Employees, Local 1612, 23 Fox 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 its 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 in 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 its rights under section 7106(a)(2)(A) and (B) of the Statute. Although the Arbitrator determined that the Activity did not apply the performance standards to the grievant in a consistent manner as required by the parties' agreement and Activity regulations, he did not order a reevaluation of the grievant. Rather, by directing that the grievant's rating on job element number 1 be changed to "exceeded" and his overall evaluation be changed to "exceptional," the Arbitrator substituted his judgment as to what the evaluation and final rating of the grievant should be.
For the above reasons, we find that the Arbitrator's award is contrary to section 7106(a) of the Statute and must be modified. Accordingly, the award ordering that the grievant be given a rating of "exceeded" on element number 1 and "exceptional" on his overall evaluation is modified to provide as follows:
Management shall reevaluate the grievant in accordance with the Activity's performance appraisal system for the period ending February 25, 1986 and shall apply that rating to the appraisal period in question.
Issued, Washington, D.C. August 31, 1987.
Jerry L. Calhoun, Chairman Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY
I concur with the result reached by the majority. However, I reach the result by a different reasoning.
As I stated in my concurrence in Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, AFL - CIO, Local 987, 28 FLRA No. 83 (1987), I believe that an arbitrator should have the discretion to determine and award the appropriate rating under any performance standard when it is determined that management improperly applied the standard in a performance appraisal. As I further stated in Warner Robins, it is my opinion that as in review of performance-based actions under 5 U.S.C. 4303, an agency should be expected to support a performance rating by substantial evidence. In my view, therefore, if an arbitrator in a performance appraisal grievance, determines that the agency fails to substantiate its rating of an employee, the arbitrator should have the discretion to direct the agency to cancel the disputed rating and to grant the employee the rating to which he or she is entitled based on the evidence.
This case is distinguishable from Warner Robins. Here, the Arbitrator found that the Activity's application of a performance standard to the grievant was inconsistent with its application of the same standard to two other employees. The grievant was rated "met" while the other employees were rated "exceeded". The Arbitrator determined that the evidence indicated the grievant and the other two employees each had failed the important initial checkride task and, therefore, all three should have been rated as having "met" rather than "exceeded" the standard. Award at 9. The other two employees were not parties to the grievance and the appropriateness of their ratings was not before the Arbitrator. Therefore, in light of the inconsistency in ratings, he ordered that the grievant's rating be raised from "met" to "exceeded", the higher rating received by the other employees. However, the Arbitrator did not determine that the Activity had failed to support its rating of the grievant with substantial evidence of the grievant's actual performance, or that the evidence of the grievant's performance under the standard warranted the higher rating.
In these circumstances, in the apparent absence of any evidence that the grievant's performance warranted a higher rating, I find, based on my opinion as to the extent of an arbitrator's discretion in performance