33:0391(50)AR - - Army Transportation Center, Fort Eustis, Virginia and NAGE Local R4-106 - - 1988 FLRAdec AR - - v33 p391



[ v33 p391 ]
33:0391(50)AR
The decision of the Authority follows:


33 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. ARMY TRANSPORTATION CENTER

FT. EUSTIS, VA

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-106

0-AR-1536

DECISION

October 27, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John J. McGovern filed by the U.S. Army Transportation Center, Ft. Eustis, VA (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 National Association of Government Employees, Local R4-106 (the Union) did not file an opposition.

The Arbitrator concluded that the Agency's actions in appraising the grievant's performance "was arbitrary and capricious." Award at 7. The Arbitrator found that the intent, spirit and thrust of an Agency regulation was violated because the Agency rejected a rating of "exceeded" given to the grievant and adopted a second rating of "having met" the performance standards. Id. The Arbitrator ordered that (1) the employee be given "exceeded" in all rating elements; (2) the first rating of "exceeded" should stand; (3) based on the rating agreed to at step 1, the rating of "exceeded" should stand; (4) supervisors should be trained in their responsibility to discuss performance with the employee; and (5) the employee be allowed to participate in developing his performance standards.

For the reasons which follow, we conclude that the award must be set aside because it violates management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

II. Background

The grievant is an instructor of aircraft armament systems. Initially, he was rated as having "exceeded" the performance standards required for his position. This rating was not adopted. Instead, a rating by the Branch Chief that the grievant "met" the performance standards was adopted by the reviewing official. The grievant argued that the first rating should prevail since it was made by his first line supervisor, who observed the grievant performing his duties and knew the grievant's capabilities. The grievant argued that the Branch Chief who rated him the second time was not his first line supervisor, was assigned to a different shift, and never personally observed his performance.

The Agency maintained that the individual who rated the grievant as having "met" the performance standards, the Branch Chief, was the grievant's immediate supervisor. The agency argued that the Branch Chief asked his subordinate for an unofficial appraisal of the grievant so that the Branch Chief could complete the official appraisal. The Branch Chief's appraisal of the grievant as having "met" the performance standards was agreed to by the reviewing official.

At a subsequent meeting between the Agency and the Union, the Branch Chief agreed to change the grievant's rating to "exceed." However, because the reviewing official refused to change the grievant's performance rating from "met" to "exceeded," the matter was submitted to arbitration.

III. Arbitrator's Award

The Arbitrator found that there was confusion as to whether the appropriate rating supervisor was the grievant's immediate supervisor, who rated the grievant as having "exceeded" the performance standards, or the Branch Chief, who rated the grievant as having "met" the standard, and later changed the rating to "exceeds" the standards.

The Arbitrator concluded that management's action was arbitrary and capricious and violated the spirit, intent and thrust of agency regulations concerning employee performance evaluation responsibilities and procedures. Therefore, the Arbitrator ordered that the following remedies requested by the Union be granted: (1) the employee be given "exceeded" in all rating elements; (2) the first rating of "exceeded" should stand; (3) based on the rating agreed to at step 1, the rating of "exceeded" should stand; (4) supervisors should be trained in their responsibility to discuss performance with the employee; and (5) the employee be allowed to participate in developing his performance standards.

IV. Exceptions

The Agency contends that the first three remedies awarded by the Arbitrator are inconsistent with management's right to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Agency argues that the Arbitrator's award is based solely on his conclusion that the Agency's action lowering the grievant's performance rating was arbitrary and capricious, and that such action violated the intent, spirit and thrust of an Agency performance evaluation regulation.

The Agency claims that the Arbitrator's determination as to who was the appropriate rating supervisor is inconsistent with the Agency's right under section 7106(a)(2)(B) to assign rating responsibilities to particular supervisors. In support the Agency cites National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982).

The Agency also asserts that, by raising the grievant's rating, the award is inconsistent with the reviewing official's discretion under section 7106(a)(2)(B) of the Statute to change a performance rating given by a first line supervisor. To support its position, the Agency cites 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 17 (1986), and The Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and National Treasury Employees Union, 17 FLRA 561 (1985).

The Agency also argues that an arbitrator cannot modify an employee's performance evaluation unless the arbitrator finds that an agency violated law, regulation or the collective bargaining agreement and that the employee would have received a different rating, absent such violation. Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (Social Security Administration).

According to the Agency, since the Arbitrator did not find any specific violation of law, regulation or the collective bargaining agreement or that the grievant was entitled to receive a higher rating absent the alleged violations, the award does not meet the conditions established in Social Security Administration. The Agency also asserts that the Arbitrator did not find that "absent management's 'arbitrary and capricious' actions, the employee's rating would have been higher." Agency's Exception at 4.

Finally, the Agency argues that the fourth remedy awarded by the Arbitrator, which directs the Agency to provide specific training to supervisors, must also be set aside because it requires management to assign work to non-unit employees in violation of section 7106(a)(2)(B) of the Statute. The Agency did not except to the fifth remedy awarded by the Arbitrator.

V. Analysis and Conclusions

We find that the award is deficient because it is 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, 30 FLRA 1156, we held that arbitrators may cancel performance ratings only when the arbitrator determines that (1) management has not applied the established elements and standards, or that (2) management has applied the established elements and standards in violation of law, regulation or a properly negotiated provision of the parties' collective bargaining agreement. An award which cancels a performance rating without making such findings is deficient because it violates management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See Id. at 1160-62.

An arbitrator may direct management to grant the grievant a particular rating when the arbitrator is able to determine on the basis of the record 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. If the record does not enable the arbitrator to determine what the grievant's rating would have been, the arbitrator may direct that the grievant's work product or performance be reevaluated by management as appropriate. See Id. 1160-61; See also Social Security Administration and American Federation of Government Employees, AFL-CIO, 31 FLRA 1277, 1279 (1988).

In this case, the Arbitrator sustained the grievance and concluded that the first rating should prevail based only on his determination that "the action taken by management was arbitrary and capricious and that the intent, spirit and thrust of AR-690-400 was violated." Award at 7. The Arbitrator did not find that management did not apply the established elements and standards or that management applied the established elements and standards in violation of law, regulation or a properly negotiated provision of the parties' collective bargaining agreement.

Consequently, the Arbitrator could not sustain the grievance and raise the grievant's performance rating based on finding that the action taken by management was arbitrary and capricious and that the intent, spirit and thrust of an Agency regulation was violated, without finding what the grievant's rating would have been if the violation found had not occurred. Therefore, by directing that the grievant's performance evaluation be raised, the award is contrary to section 7106(a)(2)(A) and (B) of the Statute.

The award is also deficient because it requires the Agency to assign training to supervisors. Training during duty hours is an aspect of the assignment of work under section 7106(a)(2)(B) of the Statute. A requirement to assign training to particular employees, including supervisors, is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 26 FLRA 375 (1987), See also AFGE Local 1760 AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA 168 (1986) (proposal 8), and The Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and National Treasury Employees Union, 17 FLRA 561 (1985). Therefore, an award which directs training for supervisors concerns the assignment of work and is inconsistent with section 7106(a)(2)(B) of the Statute and must also be set aside.

In summary, we find that the first four remedies awarded by the Arbitrator are inconsistent with management's rights to direct employees and to assign work under sections 7106(a)(2)(A) and (B) of the Statute.

In view of this decision, we conclude that it is unnecessary to address the Agency's additional arguments that the Arbitrator exceeded his authority.

We are uphold