31:1277(116)AR - SSA and AFGE -- 1988 FLRAdec AR



[ v31 p1277 ]
31:1277(116)AR
The decision of the Authority follows:


31 FLRA NO. 116

SOCIAL SECURITY ADMINISTRATION

    Agency

 and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO

    Union

                                       Case No. 0-AR-1450

                            DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator John F. Leahy. Following an expedited
arbitration proceeding, the Arbitrator ordered the grievant's
performance appraisal rating for two of her job elements changed
to a higher rating. The exceptions were 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. The Union filed an opposition.

     The questions presented here are (1) whether the Agency's
exceptions should be dismissed because the Agency waived its
right to file exceptions to expedited arbitration awards, and, if
not, (2)  whether the Agency has established that the award is
deficient.

     We conclude that the Agency did not waive its right to file
exceptions. We also conclude that by sustaining the grievance and
cancelling the grievant's performance rating for two of her job
elements, the award is contrary to section 7106(a)(2)(A) and (B)
of the Statute, and we will set the award aside.

     II. Background and Arbitrator's Award

     In her annual performance appraisal for the period in
dispute, the grievant received an overall rating of "excellent."
However, on two of her job elements--generic  job tasks
(GJTs) --she received a lower rating than she had received in the
previous rating period. She filed a grievance alleging that those
lower ratings were not "'fair' or objective." Award at 2.  The
grievance was submitted to arbitration under the expedited
arbitration procedures of the parties' collective bargaining
agreement.

     The Arbitrator determined that a fair evaluation would have
given the grievant ratings on the two disputed GJTs that were
equal to or better than the ratings she had received the previous
year. Accordingly, the Arbitrator directed GJT #20 changed from 2
to 3 and GJT #40 changed from 3 to 4.

     III. Exceptions

     The Agency contends that the award is contrary to section
7106(a)(2)(A) and (B) of the Statute. The Agency argues that the
Arbitrator could not properly order the grievant's ratings
changed because he did not find that management had failed to
comply with applicable requirements of law, regulation, or the
collective bargaining agreement in appraising the grievant. The
Agency also contends that the award is contrary to 5 C.F.R.
430.204(k), providing for annual performance ratings, because the
Arbitrator granted the grievant the ratings she had received in
the previous year.

     The Union contends that the Authority should dismiss the
exceptions because under the provisions of the parties'
collective bargaining agreement, exceptions may not be filed to
an expedited arbitration award. The Union states that Article 25,
Section 7 of the agreement provides, in part: "The arbitrator's
decision shall be final and binding on both parties." Under this
provision, the Union maintains that exceptions cannot be filed
with the Authority and that the Authority should have dismissed
the exceptions in Social Security Administration and American
Federation of Government Employees, AFL - CIO, 16 FLRA  552
(1984) and Social Security Administration and American Federation
of Government Employees, Local 1923, 22 FLRA  602 (1986). With
respect to the substance of the Agency's exceptions, the Union
claims that the award is not deficient.

     IV. Analysis and Conclusions

     A. The Agency Did Not Waive Its Right to File Exceptions

     In SSA, 16 FLRA  552, and SSA, 22 FLRA  602, the Authority
refused to dismiss exceptions filed to expedited 
arbitration awards. We reaffirm those rulings and find in this
case that the Agency's exceptions are properly before us for
decision.

     Although parties may waive statutory rights, those waivers
must be clear and unmistakable. For example, Internal Revenue
Service, 29 FLRA  162 (1987). In determining whether a contract
provision constitutes a clear and unmistakable waiver, we examine
the wording of the provision and other relevant provisions of the
agreement, bargaining history and past practice. See IRS, 29 FLRA
at 166-67.

     In this case, we conclude that Article 25, Section 7, quoted
by the Union, does not constitute a clear and unmistakable waiver
of the right to file exceptions to expedited arbitration awards.
The provision makes no  mention of appeals or the filing of
exceptions under section 7122(a) of the Statute being precluded.
Furthermore, the Union fails to otherwise establish that such a
result was intended by the parties. Accordingly, we will resolve
the Agency's exceptions.

     B. The Award Is Deficient

     We conclude that the award is deficient as contrary to
management's rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute.

     In Social Security Administration and American Federation of
Government Employees, AFL - CIO, 30 FLRA  1156 (1988), we
reexamined the remedial authority of arbitrators in performance
appraisal matters. We concluded that many of the then-existing
restrictions on the authority of arbitrators were not warranted.
However, we reaffirmed that arbitrators may sustain grievances
over the application of performance standards and may cancel
performance ratings only when "they determine that management had
not applied the established elements and standards or that
management had applied the established elements and standards in
violation of law, regulation, or a properly negotiated provision
of the parties' collective bargaining agreement." 30 FLRA  at
1160. An award which cancels a performance rating without making
such a finding is deficient because it violates management's
rights to direct employees and assign work under section
7106(a)(2)(A) and (B). See id. at 1160-62; see also Ogden Air
Logistics Center and American Federation of Government Employees,
Local 1592, 31  FLRA  872 (1988).

     In this case, according to the Arbitrator, the grievant
claimed only that the ratings for the two GJTs "were not 
'fair' or objective." In sustaining this grievance and canceling
the performance ratings, the Arbitrator determined only "that a
'fair' evaluation would have given equal (or better) ratings on
the individual GJT items to the year before." Award at 2.  The
Arbitrator did not find that the existing standards were applied
to the grievant in violation of law, regulation, or the parties'
collective bargaining agreement. Instead, the Arbitrator directed
the Activity to raise the grievant's performance appraisal
ratings for the two disputed GJTs based only on his finding of
what would have been a "fair" evaluation.

     Under established Authority precedent, which was reexamined
and reaffirmed in SSA, 30 FLRA  1156, the Arbitrator was not
authorized based on his findings to sustain the grievance and to
cancel the grievant's performance ratings. C