43:1235(99)AR - - HHS, SSA and AFGE Local 2369 - - 1992 FLRAdec AR - - v43 p1235



[ v43 p1235 ]
43:1235(99)AR
The decision of the Authority follows:


43 FLRA No. 99

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 2369

(Union)

0-AR-2149

DECISION

January 30, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Theodore H. Lang filed by 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 Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained the grievance of an employee who protested his performance rating with regard to three performance elements. The Arbitrator found that the Agency had acted arbitrarily in rating two of the elements and ordered the rating increased for those elements. The Agency has filed exceptions contending that the award is contrary to law and regulation and that the award fails to draw its essence from the parties' collective bargaining agreement. For the following reasons, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is a claims representative who filed a grievance protesting his performance rating of Level 4 instead of Level 5 on three performance elements for the period of October 1, 1989, through September 30, 1990. The performance elements that the grievant challenged were Generic Job Task (GJT) 40 (decisions on claims), GJT 71 (interviewing claimants and dealing with the public), and GJT 7 (providing technical guidance to other employees). The grievance was not resolved and was submitted to arbitration on the following issue:

Should the Grievant . . . receive Level 5 ratings for Generic Job Tasks ("GJT") 40, 71 and 7, instead of the Level 4 ratings in the evaluation of [his] services for the period from October 1, 1989 through September 30, 1990?

Award at 1.

The Union contended before the Arbitrator that the grievant's supervisor "'acted arbitrarily and capriciously by failing to document actual performance, by failing to apply the performance standards fairly and equitably, and by assigning ratings that were contrary to [the supervisor's] own perception of [the grievant's] performance.'" Id. at 4-5 (quoting from Union's position). The Union claimed that GJT 40 is "very similar" to GJT 1 (adjudicating new claims) and that the grievant had "a 95% degree of accuracy" in GJT 40 while he had "a 92% degree of accuracy" in GJT 1. Id. at 5 (emphasis omitted). The Union also argued with respect to GJT 71 that the grievant's supervisor never had to intervene in interviews conducted by the grievant with the public although the Level 4 standard states that a supervisor "will rarely intervene." Id. (emphasis omitted). The Union maintained that the grievant minimized interview time by performing related clerical tasks and that he handled cases that he was not required to handle when clients waited in the wrong interview line. The Union pointed out to the Arbitrator that the grievant had provided training to a trainee and that he "was used as a resource mentor for benefits calculations." Id. at 6. The Union also claimed that the grievant's supervisor was under the impression that Level 5 ratings were discouraged by higher Agency management and that Level 5 ratings were not given to employees by other supervisors.

The Agency contended that the grievant had been properly rated and denied that the grievant was entitled to ratings higher than Level 4 on the GJTs in question. The Agency also stated that inasmuch as there was no written standard for Level 5, a supervisor was allowed "subjectivity in rewarding employees whose performance exceeded the written standard to an exceptional degree." Id. (quoting from the Agency's position). The Agency asserted that, if the Arbitrator ordered the grievant's ratings raised to Level 5, the Arbitrator would, in effect, be establishing new performance standards in violation of Authority precedent.

The Arbitrator ruled that the Agency failed to rebut the Union's showing that the grievant's supervisor "improperly applied the Level 5 standards[]" with regard to GJT 40, because the grievant's performance in that category "was equal to or better than his performance in GJT 1" in which he received a Level 5 rating. Id. at 7. The Arbitrator found that the disparity in ratings between the two similar GJTs was "internally inconsistent." Id. The Arbitrator further noted that the grievant's supervisor "was constrained to give no 'Outstanding' summary ratings and was upset that other supervisors were allowed to give 'Outstanding' evaluations." Id.

The Arbitrator rejected the Agency's contention that the matter should be returned to the Agency for action. He noted that the grievant's supervisor at the time of the rating had retired and that a higher-level supervisor, the Operations Officer, had expressed a commitment against giving the grievant a Level 5 rating. The Arbitrator stated that "there are adequate facts in the Record for the Arbitrator to grant a rating." Id. at 7-8.

The Arbitrator concluded that the Agency acted arbitrarily when it gave the grievant a Level 4 rating for GJT 40 and stated that the rating was "inconsistent with the internal documentation that Grievant deserved a rating on GJT 40 as least equal to his rating on GJT 1." Id. at 8. The Arbitrator ruled with regard to GJT 71 that the Level 4 rating was arbitrary and that the grievant was entitled to a rating of Level 5. He based that conclusion on the evidence that the grievant had required no supervisory intervention and that he had exceeded normal job requirements. The Arbitrator also based his ruling on the supervisor's "mistaken assumption that she could give no 'Outstanding' summary rating." Id. As to GJT 7, the Arbitrator found that the Union had not met its burden of proof. Accordingly, the Arbitrator did not change the rating of Level 4 for GJT 7.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is contrary to management's rights to assign work and direct employees under section 7106(a)(2)(A) of the Statute and that the Arbitrator improperly substituted his judgment for that of management. The Agency maintains that the award does not meet the Authority's two-prong test for examining an arbitrator's exercise of his or her remedial authority in cases involving the application of performance standards set forth in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I) and described 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).

The Agency asserts that the Arbitrator failed to meet the first part of the Authority's test because he did not establish that the grievant was appraised in a manner that was contrary to the parties' collective bargaining agreement or any law, rule or regulation. Rather, the Agency maintains, the Arbitrator made arbitrary findings based on an improper comparison of the rating for one GJT with another GJT and based on performance factors not included in the aspect of performance being appraised. The Agency contends that the Arbitrator failed to meet the second part of the Authority's test because he decided what the grievant's rating should be when there was insufficient evidence in the record on which to base that finding and, therefore, the Arbitrator's rating of the grievant was arbitrary and in excess of his authority.

The Agency also contends that the award is deficient because it is contrary to Government-wide regulations pertaining to performance appraisal issued by the Office of Personnel Management (OPM) in 5 C.F.R. Part 430. The Agency asserts that the Arbitrator improperly found the grievant's ratings to be "'internally inconsistent'" when he compared two different elements and that the Arbitrator "totally ignored the fact that [the elements] involve distinctly different workload items and different processing criteria." Exceptions at 7. The Agency maintains that the Arbitrator did not comply with the requirements for specific and distinctive performance elements set forth in 5 C.F.R. §§ 430.203-206 and states that the Arbitrator "cannot arrive at a proper rating simply by comparing one standard to the other[.]" Id. at 9.

Finally, the Agency contends that the Arbitrator exceeded his authority by substituting his judgment for that of the Agency and creating a new performance standard. The Agency contends that as a result of the Arbitrator's creation of a new standard, the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. The Agency asserts that Article 21, Performance Appraisal, of the parties' collective bargaining agreement requires that employees be rated on the basis of a comparison of the employee's performance with the established standards and elements. The Agency contends that the Arbitrator ignored that requirement of the agreement and, instead, compared different standards and elements to each other and "mingled distinct elements." Id. at 11.

B. The Union

The Union disputes the assertion that the Arbitrator failed to specify a particular provision of the parties' agreement, law or regulation that the Agency violated in rating the grievant. The Union maintains that the Arbitrator cited and relied on Article 21 of the agreement when he found that the ratings given the grievant for the disputed GJTs were not supported by accurate documentation, as required by the agreement. Further, the Union asserts that the Arbitrator found a violation of regulation in the supervisor's "belief that she could not assign an outstanding summary rating, an activity specifically prohibited by 5 C.F.R. § 430.206(d)[,]" which prohibits a forced distribution of ratings among employees. Opposition at 5.

The Union maintains that the Arbitrator properly awarded a Level 5 rating for GJT 40, although there is no written standard for Level 5, because the Arbitrator found that the grievant's performance exceeded the written Level 4 standards for GJT 40. The Union contends that there was nothing improper in the Arbitrator's reliance on the rating for GJT 1 because "the written Level 4 standards for GJTs 1 and 40 were identical[,]" and the Arbitrator "saw that two aspects common to the GJTs (timeliness and the need for technical assistance) were documented identically and that in the third aspect (degree of accuracy) the documentation indicated a higher degree of accuracy in GJT 40." Id. at 6. The Union notes that the Arbitrator held that his findings in that regard were not rebutted by the Agency.

The Union contends that the Agency's argument that the Arbitrator considered an unrelated factor in assessing the grievant's performance on GJT 71 constitutes disagreement with the Arbitrator and an attempt to relitigate the matter. The Union asserts that the grievant did perform clerical duties that "expedited the interview process (which is part of GJT 71)." Id. at 7. The Union also asserts that there was a sufficient record on which the Arbitrator could determine what the grievant's rating would have been.

The Union argues that the Arbitrator did not establish new rating criteria by finding internal inconsistency in the grievant's ratings. The Union maintains that the Arbitrator only applied the established standards and determined what the grievant's rating would have been if the Agency had not committed violations of the agreement and regulation. The Union also contends that the Arbitrator did not improperly mingle performance elements and standards and that the award does not fail to draw its essence from the parties' agreement.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law or Regulation

The Agency has failed to demonstrate that the Arbitrator's award is contrary to law, Authority precedent, or Government-wide regulations. Specifically, the Agency has not shown that the award fails to meet the test for analyzing the remedial authority of arbitrators in performance appraisal cases that was established in SSA I and described in SSA II. Further, the Agency has failed to establish that the award is contrary to 5 C.F.R. Part 430.

In SSA II, we described the two-prong test to be used in performance appraisal cases 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, the Arbitrator noted the relevant provisions of the parties' collective bargaining agreement, including Article 21, Section 6(B), which provides that employees will be rated "by comparing the employee's actual performance against the performance standard[,]" and Section 3(A), which provides, among other things, that "[p]erformance standards will be applied in a fair and equitable manner." Award at 2-3. Therefore, by finding that the grievant's performance standards were applied arbitrarily, the Arbitrator implicitly found a violation of the parties' collective bargaining agreement and his award meets the first prong of the test described in SSA II.

We reject the Agency's contentions that the Arbitrator failed to make the required finding under the second part of the test described in SSA II and that the Arbitrator "awards relief, in the form of increased rating[s], without a requisite finding that the record evidence supports the rating to be awarded." Exceptions at 6. To the contrary, the Arbitrator specifically stated that "there are adequate facts in the Record for the Arbitrator to grant a rating." Award at 7-8. We find nothing in the Arbitrator's award to indicate that he was unable to and did not make a determination, based on the record, as to what the grievant's rating would have been if the Agency had not violated the agreement. See U.S. Department of Veterans Affairs, Medical Center and American Federation of Government Employees, Local 1168, 41 FLRA 250 (1991) (arbitrator properly determined that grievants would have received higher performance ratings if the agency had not violated the parties' collective bargaining agreement by failing to conduct progress reviews and provide grievants copies of their performance standards).

The Agency also asserts that the award is inconsistent with various sections of 5 C.F.R. Part 430, which are set forth in the appendix to this decision. We find nothing in the Arbitrator's award that is contrary to the regulations cited by the Agency. The Arbitrator did not, as the Agency contends, improperly compare the grievant's ratings in separate elements to determine the rating that should be assigned and he did not establish new performance criteria. The Arbitrator did not create a requirement that the same rating must be given in two separate elements. Rather, the Arbitrator determined that the grievant was not rated in accordance with his actual performance of duties for certain critical elements, and relied to a great extent on his finding that the grievant's performance in GJT 40, making decisions on post-entitlement claims, was arbitrarily rated at a lower level than his performance in GJT 1, adjudicating new claims, which entailed similar duties to GJT 40. The Arbitrator did not hold that GJT 1 and GJT 40 must be rated against the same performance criteria. Instead, the Arbitrator held that the Agency, in finding the grievant's performance to be at Level 5 with regard to the criteria established for GJT 1, should also have found the same level of performance with regard to the similar criteria and equal or better performance in the criteria established for GJT 40. Consequently, the Arbitrator concluded that the grievant was entitled to a rating of Level 5, instead of the rating of Level 4, which the Arbitrator found was inconsistent and arbitrary.

Similarly, with regard to GJT 71, the Arbitrator did not establish new performance criteria and did not improperly substitute his judgment for that of the Agency. Rather, the Arbitrator found that the Agency failed to rate the grievant in accordance with the established standards for that performance element or GJT and that the grievant's supervisor erroneously thought that she could not give a Level 5 rating. Therefore, he found that the grievant's rating for GJT 71 was also arbitrary.

We conclude, therefore, that the Arbitrator's award ordering the Agency to raise the grievant's performance appraisal to Level 5 is not contrary to law, Authority precedent, or OPM regulation.

B. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement

We find that the Agency provides no basis for finding that the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. To demonstrate that an award is deficient because it fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 41 FLRA 1435, 1439 (1991).

The Agency fails to establish that the award is deficient under any of those tests. The Agency argues that the Arbitrator failed to comply with the requirement in Article 21, Section 6(B) of the parties' collective bargaining agreement that an employee's performance be rated by comparing actual performance against the performance standard. We disagree. The Arbitrator specifically examined the ratings given the grievant by his supervisor and determined that the grievant's performance was not rated in accordance with the established elements and standards because the supervisor "improperly applied the unwritten Level 5 standards." Award at 7. The Arbitrator supported his determination on two grounds: (1) that the supervisor's rating as to GJT 40 was not consistent with the rating given for a similar performance element in GJT 1 although the grievant's performance in GJT 40 was equal to or better than his performance in GJT 1; and (2) that the supervisor erroneously thought that a Level 5 rating was not permitted. There is nothing in that aspect of the Arbitrator's award that fails to draw its essence from the parties' agreement.

Further, the Agency maintains that the Arbitrator "compar[ed] one GJT against the other and [made] them the same to assure 'internal consistency' when there is no such term or requirement in any contract article, rule or regulation for appraisals." Exceptions at 10. We disagree with that contention also. The Arbitrator merely examined the rating given the grievant against the estab