45:0124(13)AR - - AFGE Local 2369 and HHS, SSA - - 1992 FLRAdec AR - - v45 p124
[ v45 p124 ]
The decision of the Authority follows:
45 FLRA No. 13
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 David N. Stein 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 sought to increase the rating levels on four performance elements in her annual appraisal. The Arbitrator found that the Agency violated the parties' national agreement in appraising the employee and directed the Agency to conduct a new appraisal of the employee. The Arbitrator further directed that the new appraisal not reflect a lower score on any Generic Job Task (GJT) than the disputed appraisal and that the new appraisal not be conducted by the supervisor who completed the disputed appraisal.
For the following reasons, we find that the Agency's exceptions fail to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant is employed by the Agency as a claims representative. Her duties include assisting claimants who seek social security benefits relating to retirement, disability, medicare, and survivorship. The grievant was rated at level 4 on GJT Nos. 1, 40, and 71 and at level 3 on GJT No. 7 for the performance appraisal year of October 1, 1989 to September 30, 1990.1/ Diane Kochanski, the grievant's immediate supervisor, completed the disputed performance appraisal. During the appraisal period, Kochanski gave the grievant two progress reviews and maintained assessments of the grievant's job performance in written "Employee Assessment System" (EAS) reviews. The Arbitrator found that the grievant was dissatisfied with the performance appraisal, partly because the assigned ratings did not qualify her for a performance bonus. A grievance was filed disputing the ratings on the four job elements and was submitted to arbitration on the following issue:
Was [the grievant's] 1989-90 appraisal prepared in accordance with the National Agreement? If not, what shall be the remedy?
Award at 1.
At the arbitration hearing, the Union argued that certain material used as documentation in the grievant's appraisal, as well as various aspects of the manner in which the appraisal was completed, violated the parties' agreement. Therefore, the Union sought to have the grievant's appraisal canceled, the ratings on GJT Nos. 1, 40, and 71 increased to level 5, and the rating on GJT No. 7 increased to level 4. The Agency contended that the annual appraisal was not in violation of the parties' agreement and that, to the extent the testimony of the grievant and Kochanski differed, the Arbitrator should credit Kochanski's testimony because she was a disinterested party. The Agency also contended that the appraisal should not be disturb[ed]" because it "consists of more than EAS [reviews] and other documentary information." Award at 9.
The Arbitrator found that the Agency had not prepared the grievant's performance appraisal in accordance with the parties' agreement. Initially, the Arbitrator found that Kochanski did not provide the grievant with a timely initial progress review as required by the parties' agreement. The Arbitrator found that the grievant was entitled to receive her initial progress review on February 1, 1990, but that it was not provided until March 23. The Arbitrator found that the progress review was designed to give an employee sufficient time to correct deficiencies in order to improve a rating, and that it is "improper and prejudicial to an employee for the Agency to unduly delay its preparation beyond the contractual time limits." Id. at 10.
The Arbitrator also found that critical notations on documents submitted in support of the annual appraisal were "confusing, ambiguous and sloppy." Id. The Arbitrator noted that Kochanski failed to excise material from the grievant's file that the grievant had successfully rebutted. Given the "inaccurate material [that was] knowingly retained in the [grievant's] file," the Arbitrator concluded that it was impossible for Kochanski's supervisor to know whether Kochanski had taken the inaccurate information into account. Id. at 11. As a consequence, the Arbitrator concluded that he could not ascertain whether Kochanski's supervisor, on review of the appraisal, would have suggested increasing the grievant's rating.
Additionally, the Arbitrator found that Kochanski violated the agreement by failing to note on an EAS review that the grievant did not perform any training during the rating period due to factors that were beyond her control. The Arbitrator noted that the grievant had been criticized for failing to provide training for other employees. The Arbitrator also rejected Kochanski's criticism that the grievant had conducted a badgering and unreasonably lengthy interview of the son of a bedridden claimant. Instead, the Arbitrator found that the situation involving the claim was complex and a great deal of information was necessary in order to establish eligibility for benefits.
Finally, the Arbitrator noted that Kochanski failed to excise successfully rebutted criticism from an EAS review concerning the grievant's failure to make a data entry regarding two claimants who had been assigned identical social security numbers. The Arbitrator stated that "I infer this error constituted evidence of Kochanski's animus to [the grievant]." Id.
Based on all of these factors, the Arbitrator concluded that the Agency had not prepared the grievant's 1989-90 performance appraisal in accordance with the parties' agreement. However, the Arbitrator found that there was insufficient evidence in the record to allow him to exercise his judgment concerning the rating the grievant should have received. Therefore, as a remedy, the Arbitrator cancelled the appraisal and, as relevant here, directed the Agency to perform a new appraisal. Further, the Arbitrator ordered that the reappraisal "not reflect lower scores in any GJT than the grieved appraisal." Id. at 12.2/ In addition, the Arbitrator "direct[ed] the Agency to have another supervisor rate [the grievant]." Id. at 11.
III. Agency's First Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the portion of the remedy providing that the reappraisal may not reflect lower scores in any GJT than the grieved appraisal interferes with management's right to direct employees under section 7106(a)(2)(A) of the Statute. The Agency also argues that this remedy fails to meet the Authority's two-prong test, 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), for examining an arbitrator's exercise of remedial authority in cases involving the application of performance standards. In this regard, the Agency states that the award improperly places limitations on how employees may be evaluated. In addition, the Agency argues that the Arbitrator was required to remand the case to management for its reevaluation and that the award fails to meet the second prong of the Authority's test "to the extent that it awards relief in the form of his conditional reevaluation." Exceptions at 4.
2. The Union
The Union maintains that this portion of the remedy is consistent with the test set forth in SSA II and does not interfere with management's right to direct employees. In addition, the Union notes that, during the arbitration hearing, the Agency apprised the Arbitrator of a Memorandum of Understanding (Memorandum) between the parties that "effectively prohibited the lowering of employees' appraisals." Opposition at 4. The Union adds that the Agency reaffirmed the intent of the Memorandum in its closing argument at the hearing.
B. Analysis and Conclusions
We reject the Agency's claims that this portion of the award fails to meet the two-prong test set forth in SSA II and that it interferes with the right to direct employees by ordering that the reappraisal not contain lower ratings than the grieved appraisal. In the circumstances of this case, such a remedy is appropriate.
In SSA I, the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. Subsequently, in SSA II, we described SSA I as "establish[ing] a two-prong test." We described 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.
It is clear that the Arbitrator found that the Agency violated the parties' agreement by failing to prepare the grievant's performance appraisal in accordance with provisions contained in the agreement. The Agency does not appear to contest this finding but, rather, excepts to conditions placed on the ratings that it gives to the grievant on the reappraisal.
As noted in SSA II, an arbitrator may order management to grant a particular rating only if the Arbitrator is able to determine from the record what the rating would have been had a contract violation not occurred. In this case, the Arbitrator found that there was "insufficient evidence in the record to exercise [his] judgment concerning what rating [the grievant] should have received[.]" Award at 11. However, the Arbitrator was able to determine that there was no evidence to warrant a lower rating than the grievant had received on the improperly prepared appraisal. Therefore, we conclude that this portion of the Arbitrator's award is consistent with SSA II.
The Union contends that remarks made by the Agency explaining a Memorandum of Understanding between the parties, along with the Memorandum itself, support the Arbitrator's remedy. The Agency does not dispute the Union's contentions. The Memorandum relates to the Agency's decision to change its performance appraisal system by temporarily suspending the use of numeric performance standards and numeric goals and indicators on employee performance appraisals. The Memorandum also provides, in part, that "[n]o unit employee will be adversely affected by the suspension of numerics, specifically in relation to their 1990 appraisal." Opposition, Exhibit 3 at 1. According to the Union, the Agency took the position at the arbitration hearing that, had it not been for the Memorandum, the grievant's appraisal would have been lower. The Union interprets this explanation as supporting the portion of the award directing that the grievant's reappraisal not be lower than the grieved appraisal.
Although the Arbitrator did not base this portion of his award on the Memorandum and the Agency's statement, it is reasonable to conclude from this evidence that the Agency has placed a lower limit on the grievant's ratings. Thus, by agreeing that no employee would be adversely affected by a change in the Agency's performance appraisal system and then by stating that the grievant's ratings were not lower because of that agreement, the Agency has effectively agreed that the grievant's ratings could not be lower than the ratings she was given. In reaching this result, we note particularly that the Agency did not contest the Union's explanation of the Memorandum or its reference to the Agency's remarks at the arbitration hearing.3/ This conclusion is bolstered by the fact that the material contained in the rating that was found inappropriate by the Arbitrator will not be considered on reappraisal. Under these circumstances, we find that the portion of the Arbitrator's award directing that the ratings on the reappraisal not be lower than those on the grieved appraisal simply recognizes that the Agency had already placed a lower limit on the grievant's ratings. Therefore, we find that the award is not deficient. See Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA 335, 343 (1988) (arbitrator's determination based on the record that the grievant's rating should be no lower than on a particular date held to be "a permissible exercise of an arbitrator's authority under [SSA I] . . . ."). Additionally, rather than placing limits on how to evaluate employees, as the Agency argues, the award recognizes that the Agency has already rated the grievant at particular levels and preserves the Agency's discretion to assign those same ratings or increase the ratings as appropriate when the Agency conducts the reappraisal. Consequently, we conclude that the award does not interfere with the Agency's right to direct employees.
We also find no merit to the Agency's contention that the award is inconsistent with the SSA decisions by directing a conditional reevaluation. As noted by the Agency, the appropriate course of action is for the Arbitrator to remand the case to enable management to reevaluate the grievant. That is precisely what the Arbitrator did.
IV. Agency's Second Exception
A. Positions of the Parties
1. The Agency
The Agency asserts that the portion of the award directing that Kochanski not conduct the reappraisal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency states that "[i]t is up to management to assign to a particular supervisor the responsibilities of rating a specific employee." Exceptions at 6. The Agency also argues that Kochanski is the only person who is in a position to reappraise the grievant properly because of her recollections of daily appraisal discussions with the grievant and other factors on which she based the disputed appraisal. The Agency asserts that it would be impossible to complete a reappraisal "without the recollections of these activities and consideration of their influence upon the appraisal." Id. at 5.
2. The Union
The Union claims that the Agency's argument is without merit. The Union states that Article 21, Section 3(A) of the national agreement requires that performance standards be applied in a fair and equitable manner and that the Arbitrator found that the supervisor harbored animus toward the grievant. Given this finding, the Union claims that the Arbitrator's "only possible make-whole recourse" was to preclude the supervisor from conducting the new appraisal. Opposition at 5. The Union also disputes the Agency's contention that Kochanski is the only person capable of appraising the grievant. The Union contends that the parties' agreement requires documentation of job performance primarily through mandatory progress and random work reviews and, therefore, that such documentation would enable anyone, not just Kochanski, to determine the grievant's level of performance.
B. Analysis and Conclusions
In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990), we held that when an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a) of the Statute, we will examine the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. Applying this approach, we conclude that the Agency fails to establish that this portion of the award abrogates management's right to assign work.
In finding that the Agency violated the parties' agreement, the Arbitrator referred to the portions of Article 21 that outline the factors to be considered in appraising employees and the requirements relating to progress reviews. The Arbitrator also specifically noted Article 21, Section 3(A), which states that "[p]erformance standards will be applied in a fair and equitable manner." Award at 2. Although the Arbitrator did not expressly identify Article 21, Section 3(A) as the basis for this portion of his award, we find, based on the award as a whole, that in directing that Kochanski not reappraise the grievant, the Arbitrator was enforcing Article 21, Section 3(A). It is well established that an agreement provision requiring that performance standards be applied fairly and equitably constitutes an arrangement for employees adversely affected by the exercise of management's rights to direct employees and assign work. See, for example, American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management Washington, D.C., 3 FLRA 784 (1980). Accordingly, we find that Article 21, Section 3(A) constitutes an arrangement for employees adversely affected by the Agency's rights to direct employees and assign work.
Moreover, we find that the Arbitrator's enforcement of Article 21, Section 3(A) does not abrogate the right to assign work. The Arbitrator did not direct that a particular supervisor complete the appraisal but, instead, determined that the reappraisal should not be performed by the same supervisor whose conduct violated the agreement. The Arbitrator left to the Agency the choice of which supervisor would perform the reappraisal. By preserving management's discretion to determine the identity of the supervisor, we conclude that the award does not abrogate management's right to assign work. Moreover, we note that the Arbitrator's order is limited to the grieved appraisal involved in this case and does not apply to appraisals of other employees, future appraisals of the grievant, or the Agency's performance appraisal system in general. Accordingly, we reject the Agency's exception that the award is deficient because it interferes with management's right to assign work. See, for example, U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288, 1303-05 (1991) petition for review filed sub nom. U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania v. FLRA, No. 91-1232 (D.C. Cir. May 21, 1991) (arbitrator's remedy requiring second-line supervisor to take class in sensitivity training held not to interfere with management's right to assign work). See also U.S. Department of Housing and Urban Development, Los Angeles Area Office, Region IX, Los Angeles, California and American Federation of Government Employees, Local 2403, AFL-CIO, 35 FLRA 1224, 1229 (1990) (arbitrators have great latitude in fashioning remedies).
We also find no merit to the Agency's argument that Kochanski is the only person who would be able to reappraise the grievant properly. In our view, nothing would prevent the reappraising supervisor from requesting pertinent information from Kochanski to be used in assessing the grievant's performance. More importantly, however, the record indicates that additional documentation, such as the EAS forms, was used in the appraisal process and that such documentation would provide a means to enable another supervisor to conduct a proper appraisal.
V. Agency's Third Exception
A. Positions of the Parties
1. The Agency
The Agency asserts that, in ordering that the grievant's reappraisal not be lower than the grieved appraisal, the Arbitrator violated Article 21, Sections 1, 3, and 4 of the parties' agreement by "administering his own brand of justice." Exceptions at 4. The Agency also claims that, by ordering a supervisor other than Kochanski to perform the reappraisal, the award fails to draw its essence from the parties' agreement. Specifically as to this latter claim, the Agency states that, under Article 21, Section 6(B) of the parties' agreement, "the supervisor" conducts an employee's performance appraisal. Id. at 6. The Agency argues that the Arbitrator ignored that requirement of the agreement and, instead, "unilaterally decided who should evaluate an employee and did so in violation of the expressed terms of the parties' National Agreement (Article 21, Section 4, C and Section 6, B, C and D), thereby administering his own brand of justice." Id. The Agency maintains that the Arbitrator's action "is unsupported by reference to any appropriate provision of Agency policy . . . or to any contract article which would legitimize his decision." Id.
2. The Union
The Union maintains that the Arbitrator in effect found that the supervisor was incapable of applying the performance standards fairly and equitably as required by Article 21, Section 3(A) of the agreement. The Union further asserts that the term "supervisor" in the agreement refers to "any management person in a supervisory position and capable of doing performance evaluations[,]" and does not refer solely to the first-line supervisor, as claimed by the Agency. Opposition at 8.
B. Analysis and Conclusions
Initially, we construe the Agency's contention that the award violates Article 21 of the parties' agreement insofar as it directs that the reappraisal of the grievant not be lower than the grieved appraisal as an assertion that the award fails to draw its essence from the agreement. For the following reasons, we find no basis on which to conclude that either that portion of the award or the portion directing that a supervisor other than Kochanski reappraise the grievant fails to draw its essence from the agreement.
To demonstrate that an award fails to draw its essence from a collective bargaining 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. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992).
In our view, the Agency has failed to demonstrate that the portion of the award directing that the reappraisal not be lower than the grieved appraisal fails to draw its essence from the collective baragining agreement under any of the tests described above. As we stated earlier, the Arbitrator found that the Agency had violated the parties' agreement and fashioned a remedy that is not inappropriate in the circumstances presented. The Agency has provided no basis on which to conclude that this portion of the award disregards the agreement or is implausible, irrational, or unconnected to the wording of the agreement.
Similarly, we find no merit to the Agency's claim that the portion of the award directing that a supervisor other than Kochanski reappraise the grievant is deficient. Thus, we reject the Agency's contention that this portion of the award ignores certain provisions of the parties' agreement and does not specify the provision of the agreement or Agency policy on which it relies.
Neither Article 21, Section 3(A) nor the other provisions of Article 21 relating to performance appraisals specify the particular supervisor who will complete such appraisals. Instead, the provisions of the agreement, including those relied on by the Agency in support of its exception, refer simply to "the supervisor." In our view, and noting particularly the Arbitrator's finding of animus toward the grievant, it was neither implausible nor irrational for the Arbitrator to direct that a supervisor other than Kochanski reappraise the grievant. Thus, there is no basis on which to conclude that the award fails to draw its essence from the parties' agreement. Rather, the Agency is merely disagreeing with the Arbitrator's interpretation and application of the parties' agreement. Such disagreement does not constitute a basis for finding an award deficient. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).
Finally, contrary to the Agency's position, we have repeatedly rejected contentions that an arbitrator is obligated to set forth findings and a rationale more specific than was provided in this case. See U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 42 FLRA 931, 934 (1991). As support, we have cited the decision in Wissman v. Social Security Administration, 848 F.2d 176 (Fed. Cir. 1988), holding that there is no general statutory obligation that an arbitrator set forth specific findings. See also U.S. Army Plant Representative Office, Bell Helicopter Textron, Fort Worth, Texas and Local 2475, American Federation of Government Employees, 29 FLRA 1329, 1330 (1987) (exception contending that award was deficient because the arbitrator failed to address a specific agreement provision provided no basis for finding the award deficient).
The Agency's exceptions are denied.
The Arbitrator's award reads as follows:
1). [The grievant's] 1989-90 appraisal was not prepared in accordance with the National Agreement.
2). The appraisal is hereby cancelled.
3). The Social Security Administration (Agency) shall perform a new 1989-90 appraisal of [the grievant]. Diane Kochanski shall not perform the appraisal. The reappraisal may not reflect lower scores in any GJT than the grieved appraisal.
4). When performing the appraisal, the Agency shall provide the information, in writing, that the grievant did not perform any training due to factors beyond her control.
5). The Agency shall excise the following material from Joint Exhibit 2:
a. Critical (negative) material on EAS of
1/31/90 pp. 19, 20.
b. Critical (negative) material on EAS of
1/29/90 pp. 21, including references to
dates 1/22/90 to 1/26/90 on pages 22 to 30.
c. Critical (negative) material on EAS,
11/17/89, pp. 36, 37.
d. Critical (negative) material on EAS,
11/27/89, page 41.
e. Critical (negative) material on EAS dated
2/22/90, pp. 11 to 14.
f. Where as [sic] area is so provided on a
document, as in subparas a, c, d, and e
herein, the document shall be modified to
reflect correct and satisfactory
6). The Agency shall not add any critical
(negative material) to Joint Exhibit 2 prior
to performing the reappraisal of [the
7). Prior to performing the reappraisal, the Agency shall provide [the grievant] with ten (10) working days in order to supplement any rebuttals of negative or critical material which has not been excised from her file referencing performance or conduct prior to March 23, 1990.
8). After expiration of the ten day period set forth in paragraph "7" of this Award, the Agency shall reappraise the grievant for the 1989-90 period within thirty days.
9). I shall retain jurisdiction over the implementation of paragraphs "3", "5", "6", "7", and "8" of this Award, but not over any new grievance which may be filed to challenge the reappraisal.
10). The grievance is granted.
(If blank, the decision does not have footnotes.)
1/ GJT No. 1 states: "adjudicates claims;" GJT No. 40 states: "makes final or binding decisions;" GJT No. 71 states: "[i]nterviews claimants, beneficiaries and the public, using appropriate language"; and GJT No. 7 states: "provides technical guidance to others[.]" Award at 3-4.
2/ The full text of the award appears in the Appendix to this decision.
3/ In fact, there is no evidence in the record that the Agency sought leave to file a submission with the Authority under section 2429.26 of our Rules and Regulations contesting the Union'