35:0377(44)AR - - SSA and AFGE Local 1923 - - 1990 FLRAdec AR - - v35 p377



[ v35 p377 ]
35:0377(44)AR
The decision of the Authority follows:


35 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-1633

DECISION

April 2, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John N. Gentry. The grievant claimed that his performance rating for a particular job task should be raised from level 3 (exceeded the standard) to level 4 (substantially exceeded the standard). The Arbitrator sustained the grievance and directed that the grievant's rating be raised.

The Social Security Administration (the Agency) filed exceptions 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 American Federation of Government Employees, Local 1923 (the Union) filed an opposition to the exceptions.

We conclude that the award is unclear as to whether the Arbitrator correctly applied the Authority's decision in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988). Accordingly, we remand the award to the parties to obtain a clarification from the Arbitrator.

II. Background and Arbitrator's Award

In the grievant's annual performance appraisal for the fiscal year ending on September 30, 1987, the grievant received a performance rating of level 3 in Generic Job Task (GJT) No. 71. GJT No. 71 states: "Interviews Claimants, Recipients, Beneficiaries, the Public, using appropriate language." Award at 2. The grievant had been rated at level 4 (or a comparable rating) for GJT No. 71 in each of the previous 9 years. A grievance was filed claiming that, by rating the grievant at level 3 instead of level 4, the Agency violated numerous provisions of the parties' collective bargaining agreement. The grievance was submitted to arbitration under the expedited arbitration procedures of the parties' collective bargaining agreement.

At arbitration, the Union contended that, in appraising the grievant, management failed to treat the grievant fairly and equitably in violation of various provisions of the agreement. The Union asserted that management failed to appraise the grievant based on a comparison of his performance with the established standards as required by Article 21, Section 1; management considered the grievant's use of approved leave in violation of Article 21, Section 3 and Article 31; and management failed to inform the grievant in progress reviews of his progress in comparison to expectations as required by Article 21, Section 7(B)(3).

The Arbitrator sustained the grievance. He concluded that management "failed to adequately apprise the Grievant during the course of the fiscal year that his performance level in GJT No. 71 was not of the same quality as his performance in this area in the past." Id. at 5. The Arbitrator stated that "it is incumbent upon Management to point out (particularly to exceptional employees) when it is felt that their level of performance is not meeting previous levels and therefore is below preconceived expectations." Id. at 6. The Arbitrator determined that "[b]ecause of the absence of periodic reviews and informal conferences with supervision throughout the course of the fiscal year, the Grievant had every right to expect that his rating in GJT No. 71 would be equal to his past ratings." Id. The Arbitrator found that management "did not take appropriate intermediate steps to adequately justify its final determination." Id. at 7. The Arbitrator also based his decision on two other factors: (1) "the appraisal of the Grievant was done by a supervisor who did not have any direct supervisory relationship with the Grievant during the course of the fiscal year," and (2) "Management relied too strongly on the absence of the Grievant during the course of the fiscal year rather than his performance." Id. at 6 (emphasis in original).

The Arbitrator ruled that "[u]nder these circumstances, the Grievant's performance appraisal in GJT No. 71 should be raised from Level 3 to Level 4." Id. at 7.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute and 5 C.F.R. § 430.205.

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), the Arbitrator could not sustain the grievance unless he found that the established performance elements and standards were applied to the grievant in violation of law, regulation, or a properly negotiated provision of the parties' collective bargaining agreement. The Agency maintains that the Arbitrator did not find that the existing performance standards were applied to the grievant in violation of law, regulation, or the collective bargaining agreement.

The Agency notes that the Union alleged that the grievant's appraisal violated specific articles of the agreement. The Agency maintains that the Arbitrator found no violation of any specified article and made no reference to any violation as it related to either the grievant's evaluation or the standards used to rate him. Therefore, the Agency contends that by ordering the grievant's performance rating changed, the award is contrary to section 7106(a)(2)(A) and (B) of the Statute and must be set aside.

The Agency also argues that the award expands the rating period beyond 1 year, contrary to 5 C.F.R. § 430.205.

B. The Union

The Union contends that the Arbitrator's award is not contrary to section 7106(a)(2)(A) and (B) of the Statute and that the Arbitrator met all the requirements of Social Security Administration. The Union concedes that "[t]he Arbitrator did not cite specific articles of the Contract that were violated." Opposition at 1. However, the Union notes that the award resulted from an expedited arbitration procedure and that the decision was written less formally than normal. The Union argues that "it is very clear from the conclusions that specific Articles were considered and that the Arbitrator did find that management violated the Contract in a number of ways." Id.

The Union maintains that "[t]he Arbitrator noted in his decision three factors that were clear violations of the National Agreement. These factors paralleled the charges listed in the Union's opening statement which did mention specific articles." Id. at 2. The Union also argues that the Arbitrator had sufficient evidence from the established record to conclude that the grievant's performance was at level 4. Accordingly, the Union maintains that the award is in accordance with Social Security Administration.

The Union also contends that the award is not contrary to 5 C.F.R. § 430.205 because the Arbitrator did not expand the rating year.

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 not clear to us whether the first prong of the test in Social Security Administration is satisfied. The award is ambiguous as to whether the Arbitrator found that management applied the established elements and standards to the grievant in violation of provisions of the parties' collective bargaining agreement.

The Arbitrator sustained the grievance and ruled that "the Grievant's performance appraisal in GJT No. 71 should be raised from Level 3 to Level 4." Award at 7. The Arbitrator found that management "failed to adequately apprise the Grievant during the course of the fiscal year that his performance level in GJT No. 71 was not of the same quality as his performance in this area in the past." Id. at 5. The Arbitrator additionally found that management "did not take appropriate intermediate steps to adequately justify its final determination." Id. at 7. The Arbitrator also stated that: (1) "the appraisal of the Grievant was done by a supervisor who did not have any direct supervisory relationship with the Grievant during the course of the fiscal year," and (2) "Management relied too strongly on the absence of the Grievant during the course of the fiscal year rather than his performance." Id. at 6 (emphasis in original).

As conceded by the Union, the Arbitrator did not cite specific violations of the agreement. However, we agree with the Union that many of the Arbitrator's findings closely parallel allegations by the Union of violations by management of specified provisions of the agreement. We note, for example, that the Arbitrator found that management failed to adequately apprise the grievant during the appraisal period that his performance was not of the same quality as his past performance. This finding closely parallels the Union's allegation that management violated Article 21, Section 7(B)(3) of the agreement by failing to inform the grievant in progress reviews of his progress in comparison with expectations. The Union contends that it had informed the Arbitrator in its opening and closing statements of this and four other specified violations of the agreement. It may be that the Arbitrator implicitly found such violations. As written, however, the award is unclear as to whether the Arbitrator based his findings on specific violations of the agreement.

It is clear, however, that the second prong of the required Social Security Administration analysis is not satisfied and that, by directing management to raise the grievant's rating to level 4, the award is deficient. The Arbitrator's ruling that the grievant's performance appraisal in GJT No. 71 should be raised to level 4 is not based on a determination by the Arbitrator of what the grievant's rating would have been for the fiscal year ending on September 30, 1987, if the grievant had been properly rated. Rather, the Arbitrator appears to base this part of his award solely on the Grievant's expectations ("[T]he Grievant had every right to expect that his rating in GJT No. 71 would be equal to his past ratings." Award at 6).

In view of our findings that the award does not satisfy the second prong of the required analysis and is ambiguous with regard to whether the first prong of the analysis is satisfied, we are unable to determine whether the award must be: (1) set aside because the Arbitrator failed to satisfy both prongs of the Social Security Administration analysis; or (2) modified to direct management to properly reevaluate the grievant because the Arbitrator satisfied the first, but not the second, prong. Therefore, it is necessary to remand the award to the parties for the purpose of obtaining a clarification of the award from the Arbitrator. The remand is for the limited purpose of having the Arbitrator clarify his award to state whether any of the deficiencies by management found by the Arbitrator constituted violations of the collective bargaining agreement sufficient to satisfy the first prong of the required Social Security Administration analysis. On receipt of the award, as clarified, either party may timely file exceptions to that award.

V. Decision

The award is remanded to the parties in accordance with this decision.(*)