35:0237(27)AR - - HHS, SSA and AFGE Local 1923 - - 1990 FLRAdec AR - - v35 p237



[ v35 p237 ]
35:0237(27)AR
The decision of the Authority follows:


35 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-1739

DECISION

March 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Peter A. Veglahn. A grievance was filed disputing the grievant's performance rating of level 3 for a particular job task. The Arbitrator sustained the grievance and, as a remedy, directed that the grievant's level 4 rating from the previous appraisal period be carried forward.

The Agency filed an exception 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 did not file an opposition to the exception.

We conclude that because the Arbitrator did not determine what the grievant's rating would have been if he had been properly rated, the award requiring that the grievant's rating be changed is contrary to section 7106(a)(2)(A) and (B) of the Statute. We will modify the award to direct that management reevaluate the grievant.

II. Background and Arbitrator's Award

In the grievant's annual performance appraisal, the grievant received a performance rating of level 3 in Generic Job Task (GJT) No. 68. GJT No. 68 states: "Prepares memoranda[,] reports, and other written products." Arbitrator's Award at 1. A grievance was filed disputing the rating and was submitted to arbitration under the expedited arbitration procedures of the parties' collective bargaining agreement.

The Arbitrator sustained the grievance, finding that the grievant had not been given timely periodic performance reviews as required by Article 21, Section 7B of the parties' agreement. As the remedy, the Arbitrator directed that: (1) the grievant's level 4 rating for GJT No. 68 from the previous appraisal period be carried forward; (2) the grievant's overall evaluation be raised to outstanding; and (3) the grievant be made whole for any loss resulting from an overall rating of excellent rather than outstanding.

III. Exception

The Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency states 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), when an arbitrator is able to determine based on the record what the performance rating would have been had management not violated the collective bargaining agreement, the arbitrator may order management to grant that rating. If the arbitrator is unable to determine what the grievant's rating would have been, the arbitrator must remand the case to management for reevaluation. The Agency argues that at no point did the Arbitrator indicate that, based on the evidence before him, he could ascertain what the rating would have been if management had not violated the agreement. The Agency contends that by directing that the previous year's appraisal rating be carried over, the award is contrary to section 7106(a)(2)(A) and (B). The Agency states that the proper remedy would have been to have management reevaluate the grievant.

IV. Analysis and Conclusions

In Social Security Administration, the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. The Authority defined the approach that arbitrators must use when examining an agency's application of a performance standard to an employee. The Authority held that:

when 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 U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990), we described Social Security Administration as "establish[ing] a two-prong test." We explained that test as follows:

First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order management to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.

Id.

In this case, it is clear, and the Agency does not dispute, that the first prong of the test in Social Security Administration is satisfied. Therefore, the Arbitrator properly sustained the grievance and, in effect, canceled the grievant's performance rating for GJT No. 68. However, it is also clear that the second prong of the required Social Security Administration analysis is not satisfied. The Arbitrator's ruling directing that the grievant's level 4 rating for GJT No. 68 from the previous appraisal period be carried forward is not based on a determination by the Arbitrator of what the grievant's rating would have been if the grievant had been properly rated. Indeed, the Arbitrator expressly found that "[e]ach performance appraisal period is discrete. The employee should not expect to receive identical ratings from appraisal period to appraisal period." Consequently, by directing the Agency to raise the grievant's performance rating for GJT No. 68 and his overall evaluation by carrying forward the grievant's level 4 rating from the previous period, the award is contrary to section 7106(a)(2)(A) and (B). For example, Social Security Administration Headquarters Offices and American Federation of Government Employees, Local 1923, AFL-CIO, 33 FLRA 143 (1988). Because the Arbitrator found that the grievant was not appraised properly, we will modify the award to require that the grievant be reevaluated.(*) Id. at 146.

V. Decision

The award is deficient because it is contrary to the Statute. The award is modified to provide as follows: