38:0610(56)AR - - HHS, SSA, Mid-America Program Service Center, Kansas City, MO and AFGE Local 1336 - - 1990 FLRAdec AR - - v38 p610
[ v38 p610 ]
The decision of the Authority follows:
38 FLRA No. 56
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
MID-AMERICA PROGRAM SERVICE CENTER
KANSAS CITY, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 30, 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 George E. Bardwell. A grievance was filed disputing the grievant's performance ratings for three job tasks. The Arbitrator sustained the grievance and concluded that the grievant's performance should be reevaluated, or, in the absence of supporting data, one of the performance ratings should be raised.
The Agency filed exceptions to the award under section 7122(a) of the Federal Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
For the reasons which follow, we conclude that the portion of the award directing the Agency to raise the grievant's performance rating is deficient. We will deny the Agency's exceptions to the remainder of the award.
II. Background and Arbitrator's Award
A grievance was filed and submitted to arbitration on the following stipulated issue: "Did management properly apply the performance standards in appraising the performance of the grievant in GJT(s)19, 111, and 112 for the appraisal period 10/3/88 through 09/30/89?" Award at 1.
The Arbitrator "answered [the issue] in the negative[,]" concluding that "[m]anagement's partial reliance upon quantitative measures of performance and accuracy without prompt notification" to the grievant was an "arbitrary exercise of management authority." Id. at 2. The Arbitrator stated that expected performance measures were not communicated to the grievant until sometime after her first performance interview in February of 1989. As his award, the Arbitrator ordered the following:
[The] Grievant's work performance is to be reevaluated taking into account quantitative standards of production and accuracy for the period [of] May 1, 1989, through September 30, 1989. In the event supporting data for this period are lacking, one of the three GJT(s), 19, 111, [or,] 112[,] is to be changed from Level 3 to Level 4.
III. The Agency's Exceptions
The Agency contends that the award is deficient because it is contrary to its right to direct employees under section 7106(a)(2)(A) 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) (SSA I), an arbitrator may not direct an agency to reappraise a grievant unless there is a specific finding as to the law, regulation, or contractual provision allegedly violated. The Agency maintains that the Arbitrator "exceeded his authority" by requiring the Agency to reevaluate the grievant without finding that the disputed evaluation violated law, regulation, or the collective bargaining agreement. Id. The Agency also contends that the Arbitrator exceeded his authority "by instructing the Agency to arbitrarily change one rating if supporting data w[ere] lacking." Id. at 5 (emphasis in original).
In addition, the Agency asserts that under the parties' agreement the performance "appraisal cycle is 12 months unless otherwise prescribed by Agency policy." Id. at 4. The Agency contends that, in directing that the grievant's work performance to be reevaluated, the Arbitrator "unilaterally" imposed "an abbreviated [appraisal] period" in violation of the collective bargaining agreement. Id. at 5.
IV. The Union's Opposition
As a preliminary matter, the Union argues that the Agency's exceptions should be dismissed because they were untimely filed.
In addition, the Union maintains that "there are no established quantitative measures" with respect to the grievant's position. Opposition at 2. Instead, the Union contends that "[e]ach manager decides on his or her own what standards should be used." Id. The Union maintains that "[t]he Arbitrator did not exceed his authority [by] asking the Agency to reevaluate" the grievant or "by instructing the Agency to change one rating if supporting data w[ere] lacking." Id. (emphasis in original).
V. Preliminary Matter
The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served. 5 U.S.C. § 7122(b) and 5 C.F.R. § 2425.1(b). The date of service is the day the award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If exceptions are filed by mail, 5 days are added to the prescribed filing period. 5 C.F.R. § 2429.22. Furthermore, if the deadline occurs on a weekend or a holiday, the filing deadline becomes the next business day. 5 C.F.R. § 2429.21(a). See U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1395, 34 FLRA 1107, 1110 (1990).
In this case, the Arbitrator's award was served on the parties, by mail, on April 19, 1990. Accordingly, to be timely, exceptions had to be filed with the Authority by close of business on May 23, 1990. The Agency's exceptions were filed (postmarked by the U.S. Postal Service) on May 23, 1990. Therefore, the Agency's exceptions were timely filed.
VI. Analysis and Conclusion
In SSA I, the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. Subsequently, 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) (SSA II), we described SSA I as "establish[ing] a two-prong test." We explained the 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.
SSA II, 34 FLRA at 328.
In this case, we conclude that the award satisfies the first prong of the test in SSA I. The parties stipulated the issue to be decided by the Arbitrator as: "Did management properly apply the performance standards in appraising the performance of the grievant . . . ?" Award at 1 (emphasis added). The Arbitrator resolved, "in the negative[,]" the exact issue stipulated by the parties. Id. at 2. The Arbitrator determined, in this regard, that the Agency erred by appraising the grievant on standards that were not communicated to the grievant until approximately 3 months after the grievant entered her new work unit.
In our view, the Arbitrator's finding constitutes a determination that the Agency did not apply established standards in appraising the grievant. An arbitrator may cancel a performance rating if the arbitrator determines that "management has not applied the established standards or has applied them in violation of law, regulation, or a provision" in a collective bargaining agreement. SSA II, 34 FLRA at 328 (emphasis added). Accordingly, we will deny the Agency's exception to the portion of the award requiring the Agency to reappraise the grievant.
Further, we reject the Agency's assertion that the award violates the parties' agreement by enabling the Agency to appraise only a portion of the grievant's appraisal year. The award does not alter the grievant's appraisal year. The award provides only that the reappraisal is to take "into account quantitative standards of production and accuracy for the period May 1, 1989, through September 30, 1989." Award at 2. It is clear, therefore, that the award does not prevent the Agency from appraising the grievant for the entire appraisal year; the award affects only the portion of that year to which the quantitative production and accuracy standards apply.
In addition to requiring the Agency to reappraise the grievant, the Arbitrator ordered the Agency to raise one of the three performance ratings if "supporting data for th[e] period are lacking[.]" Id. at 2. Consistent with SSA I, however, an arbitrator may order management to grant a particular rating only "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[.]" SSA II, 34 FLRA at 328. The portion of the Arbitrator's award directing the Agency to raise one of the grievant's performance ratings was not based on the Arbitrator's determination as to what the rating would have been but for the Agency's violation of law, rule, regulation, or a provision in the parties' agreement. Accordingly, we will set aside only that portion of the award.
The portion of the Arbitrator's award which orders that one of the three performance ratings be raised is set aside. The Agency's exceptions to the remainder of the award are denied.
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