33:0143(17)AR - - SSA HQ Offices and AFGE Local 1923 - - 1988 FLRAdec AR - - v33 p143
[ v33 p143 ]
The decision of the Authority follows:
33 FLRA No. 17
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION HEADQUARTERS OFFICES
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 14, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Arthur E. Berkeley. The grievant filed a grievance claiming that her summary performance appraisal should be raised from excellent to outstanding. The Arbitrator sustained the grievance. He directed that the grievant's performance ratings for two job elements be raised and that her summary appraisal be raised to outstanding.
The Agency filed an exception to the award 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.
We conclude that by directing that the grievant's performance ratings for two job elements be raised and that her summary appraisal be raised, the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. We will modify the award to direct that the grievant be reevaluated.
II. Background and Arbitrator's Award
The grievant received a summary performance appraisal of excellent for the appraisal period that ended on September 30, 1987. She filed a grievance claiming that her summary rating should be raised from excellent to outstanding.
The Arbitrator determined that the grievant had not been appraised in accordance with the parties' collective bargaining agreement. He found that the grievant's supervisor had failed to provide the grievant with two progress reviews during the appraisal period as required by the collective bargaining agreement. The Arbitrator stated that "[i]t is not equitable to downgrade an employee's ranking on any GJT [Generic Job Task] when that employee has not been afforded the opportunity to improve her performance." Arbitrator's Opinion and Award at 3.
Accordingly, he sustained the grievance and awarded, as follows:
It is therefore only equitable to grant [the grievant's] request and order that her rating for GJT #69 be increased to a level 4, and her rating for GJT #17 be also increased to a level 4. This in turn means that her Summary Appraisal will be raised to Outstanding.
The Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency maintains that the Arbitrator did not find that the Agency's existing performance standards were improperly applied to the grievant. The Agency also maintains that the Arbitrator did not determine what the grievant's rating would have been under the established standards. The Agency argues that under the Authority's decision in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (Social Security Administration), the Arbitrator should have ordered that the grievant be reevaluated.
The Union contends that the Agency's exception should be denied. The Union maintains that in ordering the grievant's performance ratings raised, the Arbitrator did determine what the grievant would have been rated had the performance standards been properly applied. The Union also argues that the Agency is improperly attempting to restrict the Arbitrator's authority.
In Social Security Administration, we discussed the remedial authority of arbitrators in performance appraisal cases. We held, as follows:
[W]hen an arbitrator finds that management has not applied the established elements and standards or that management has applied the established elements and standards in violation of law, regulation, or a properly negotiated provision of the parties' collective bargaining agreement, the arbitrator may cancel the performance appraisal or rating. When the arbitrator is able to determine on the basis of the record presented what the rating of the grievant's work product or performance would have been under the established elements and standards, if they had been applied, or if the violation of law, regulation, or the collective bargaining agreement had not occurred, the arbitrator may direct management to grant the grievant that rating. If the record does not enable the arbitrator to determine what the grievant's rating would have been, the arbitrator should direct that the grievant's work product or performance be reevaluated by management as appropriate.
30 FLRA at 1160-61.
In this case, we conclude that the Arbitrator's award-- ordering that the grievant's performance ratings be raised--is contrary to section 7106(a)(2)(A) and (B) of the Statute. Under Social Security Administration, the Arbitrator was not authorized based on his findings to direct the Activity to grant the grievant the specified ratings.
In order for an arbitrator to be authorized to direct management to grant a grievant a specified performance rating, the arbitrator must determine on the basis of the record evidence what rating the grievant's work product or performance would have received if the grievant had been properly appraised. In this case, the Arbitrator's award is not based on a determination by the Arbitrator that the grievant's work product or performance under GJT #17 and GJT #69 would have been rated at level 4 if she had been provided the two progress reviews required by the collective bargaining agreement. Instead, the Arbitrator determined that it was not "equitable to downgrade" the grievant's performance when she had not been afforded an opportunity to improve her performance. Arbitrator's Opinion and Award at 3. He concluded, therefore, that it was "only equitable" to order the grievant's performance ratings raised. Id.
Accordingly, the award is deficient. Because the Arbitrator found that the grievant was not appraised properly, we will modify the award to require that the grievant be reevaluated in accordance with the requirements of the collective bargaining agreement. For the reasons stated in Social Security Administration, we reject the Union's claim that this remedy constitutes an improper restriction on the Arbitrator's authority.
The award is deficient because it is contrary to the Statute. The award is modified to provide as follows:
The grievance is sustai