38:1198(96)AR - - HHS, SSA and AFGE Local 1395 - - 1990 FLRAdec AR - - v38 p1198



[ v38 p1198 ]
38:1198(96)AR
The decision of the Authority follows:


38 FLRA No. 96

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 1395

(Union)

0-AR-1832

DECISION

December 31, 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 Anne L. Draznin. A grievance was filed disputing the grievant's performance rating of "fully satisfactory" on her annual evaluation for the appraisal year October 1987 through September 1988. In particular, the grievance disputed the rating levels of "2" on three critical elements in the annual evaluation. The Arbitrator sustained the grievance and directed that the ratings of the two elements at issue before her, Generic Job Task (GJT) Nos. 117 and 133, be raised to level 3.

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 the portion of the award directing the Agency to raise the grievant's GJT No. 133 performance rating is deficient. We will modify the award to direct that management reevaluate the grievant's performance under that element. We will deny the Agency's exception to the remainder of the award.

II. Background and Arbitrator's Award

The grievant, a benefit authorizer at the Agency's Great Lakes Program Service Center, was given a "fully satisfactory" performance rating in her annual evaluation for the appraisal year October 1987 through September 1988. The grievant was evaluated on three critical elements, numbered 111, 117 and 133. Initially, she had received ratings of "2" or "fully satisfactory" on all three. She appealed those ratings, alleging that the appraisal rating was unfair because it did not properly take into account the work she did while on detail and on continuing detail cases after her return to her regular position. During the grievance process, the rating on GJT No. 111 was raised to level 3. The other two ratings were still in dispute when the grievance was submitted to arbitration.

At arbitration, the parties agreed to the following issue: "Was the grievant . . . rated fairly and equitably? If not, what should the remedy be?" Arbitrator's Award at 1. The Arbitrator found that the grievant had not been given adequate credit for her work while on a detail during the rating period on "CS Audit" cases and after the detail when she continued to do CS Audit cases, in addition to her regular assignments. The Arbitrator held that the grievant had been effectively penalized for serving on the detail. The Arbitrator noted that the grievant received a commendation and an award for her work on the detail. The Arbitrator found that management's action had an unfair and negative effect on the grievant's evaluation. The Arbitrator further found "the contractual requirement that an employee be evaluated according to the quality of the work according to expectations which are spelled out in advance is not satisfied by ignoring special work performed by the employee for which the employee receives commendation because that work is not included in the original compilation of work expectations." Id. at 6. The Arbitrator also concluded that management's evaluation of the grievant was contrary to Article 21 of the parties' agreement, which requires a clear and accurate evaluation. Id. at 11.

With regard to GJT No. 117, the Arbitrator found that management's evaluation method was inequitable. After an analysis of the GJT requirements and management's evaluation of the grievant's work based on those requirements, the Arbitrator considered the grievant's work on the detail and the extra work on the CS Audit cases she continued to handle on her return. In evaluating the grievant's work, the Arbitrator determined that the grievant should have received a rating of "3" on GJT No. 117.

With regard to GJT No. 133, the Arbitrator found that management's evaluation of the grievant's performance lacked a clearly stated basis upon which the performance was evaluated. The Arbitrator concluded that the absence of specific figures under this element did not "comply with the specific and clear bases for performance reviews required by the contract." Id. at 10. The Arbitrator directed that the rating on this element be raised to a level 3.

III. Agency's Exception

The Agency excepts to the Arbitrator's award to the extent that it grants higher appraisal ratings to the grievant. It contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that the Arbitrator improperly substituted her judgment for that of management in determining what the performance standards should be. It contends that by determining what work management had to consider, the Arbitrator directly interfered with management's right to direct employees.

The Agency further argues that instead of finding that management had not applied the established elements and standards or that management had applied the established elements and standards in violation of law, regulation, or the collective bargaining agreement, the Arbitrator simply disagreed with the ratings that management had given the grievant and directed that the ratings be raised. The Agency contends that the findings required to change a grievant's rating, established by the Authority in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (Social Security Administration), were not made. Additionally, the Agency contends that, assuming that management did misapply the performance standards in rating the grievant, the Arbitrator should have remanded the matter to management for reevaluation of the employee.

IV. Analysis and Conclusions

In Social Security Administration, 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 Social Security Administration 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 Social Security Administration. The Arbitrator determined that management's action had an unfair and negative effect on the grievant's evaluation. In this regard, she found that by ignoring the special work performed by the employee, management did not satisfy the contractual requirements of the parties' agreement. Arbitrator's Award at 6. Further, she concluded that management's evaluation of the grievant was contrary to Article 21 of the parties' agreement, which requires a clear and accurate evaluation. Id. at 10.

In our view, the Arbitrator's finding constitutes a determination that the Agency applied the established standards in violation of the parties' collective bargaining agreement. 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. Therefore, the Arbitrator properly sustained the grievance and, in effect, canceled the grievant's performance ratings for GJT Nos. 117 and 133.

An arbitrator may order management to grant a particular rating only "if the arbitrator is able to determ