46:1147(105)AR - - HHS, SSA, Boston Region, Office of Program Integrity and Review and AFGE Local 3760 - - 1993 FLRAdec AR - - v46 p1147
[ v46 p1147 ]
The decision of the Authority follows:
46 FLRA No. 105
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF PROGRAM INTEGRITY AND REVIEWS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 8, 1993
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 John P. McCrory 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.
In sustaining a grievance disputing the grievant's performance rating, the Arbitrator directed the Agency to raise the grievant's performance rating in each of five generic job tasks (GJTs) and the overall summary appraisal from "fully satisfactory" to "excellent." For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
In December 1991, the grievant received a performance appraisal in which she was granted a "fully satisfactory" rating in GJT Nos. 15, 17, 19, 22 and 25. The grievant filed a grievance asserting that her "fully satisfactory" rating for the five GJTs should be changed to "outstanding" and, as a result, that her overall summary rating also should be changed to "outstanding."(*)
The grievance was not resolved and was submitted to arbitration on the following stipulated issue:
Should the [g]rievant receive level 5 outstanding ratings in the GJT numbers 15, 17, 19, 22 and 25 and receive an overall summary appraisal of outstanding?
Award at 1. The parties also stipulated that if the grievance was sustained, the grievant's appraisal rating could be adjusted by the Arbitrator if such adjustment was supported by evidence in the record.
The Arbitrator determined that the Agency had applied the grievant's performance standards in violation of the parties' collective bargaining agreement by failing to inform the grievant of any significant performance deficiencies during the appraisal period. The Arbitrator noted that the parties' agreement requires, among other things, that informal discussions (including performance reviews) and documented progress reports summarize any current or anticipated problems with an employee's work performance. The Arbitrator found that, although the Agency claimed that there were specific problems which justified its rating of "fully satisfactory," the grievant's supervisor failed to advise the grievant of any deficiencies in her performance discussion or her ratings.
As relevant here, the Arbitrator found that, although the Agency asserted that the "fully satisfactory" rating for GJT 22 was justified based on the grievant's excessive personal use of the telephone, "the probative value of the [Agency's] evidence on the matter [was] questionable" because "some personal calls are tolerated, the testimony [was] vague and unspecific, and there [was] a lack of information as to the magnitude of the alleged problem." Id. at 3. In addition, the Arbitrator found that the Agency did not demonstrate that the grievant's behavior persisted after her supervisor discussed the matter with her. Similarly, although the Agency based its rating for GJT 19 on reports that certain of the grievant's work was not "edit-free", the Arbitrator found that "the probative value" of the Agency's evidence on this point was "questionable" because the alleged deficiency was not noted in the grievant's ratings and was not "mentioned until after the grievance was filed." Id. Finally, as to GJT 17, the Arbitrator found that "[t]he suggestion that the [g]rievant was deficient with respect to typing memos and correspondence" was "problematic" because this deficiency was not addressed in the grievant's performance discussions or ratings and because the grievant's supervisor stated that the [g]rievant "was not normally asked to perform these duties." Id. at 4.
Based on the Authority's decisions in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988)(SSA I), and 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 Arbitrator first concluded that the grievant's performance standards were applied in violation of the parties' agreement. Therefore, the Arbitrator cancelled the grievant's "fully satisfactory" rating. Second, the Arbitrator concluded that the evidence in the record supported a determination that the grievant would have received an "excellent" appraisal rating in each of the five GJTs if the contract violations had not occurred. As a result, the Arbitrator granted the grievance and directed that the Agency change the grievant's performance rating to "excellent" in the five disputed GJTs and raise her overall summary appraisal rating to "excellent."
III. Positions of the Parties
The Agency does not challenge the Arbitrator's award insofar as it raises the grievant's appraisal rating in GJTs 15 and 25 to excellent. The Agency does, however, allege that the award is deficient as contrary to section 7106(a)(2)(A) of the Statute insofar as it raises the ratings for GJTs 17, 19 and 22. In particular, the Agency alleges that the award fails to meet the two-prong test set forth in SSA I and SSA II. According to the Agency, there was insufficient evidence in the record for the Arbitrator to determine what the grievant's rating would have been had the Agency not violated the parties' agreement. The Agency asserts, in this connection, that although a failure to notify an employee of performance deficiencies may justify cancellation of the rating, it does not justify an Arbitrator's determination of a different rating. The Agency also asserts that "the [A]rbitrator did not apply the [g]rievant's actual performance against the performance standards, but merely negated those aspects of the supervisor's judgment he found at fault." Exceptions at 8. The Agency requests that the award be modified and remanded to management to determine the proper ratings for GJTs 17, 19 and 22.
The Union contends that the Agency's exceptions should be dismissed because they constitute mere disagreement with the Arbitrator's evaluation of the evidence.
IV. Analysis and Conclusions
In SSA II, we described a two-prong test to analyze the remedial authority of arbitrators in performance appraisal cases:
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.
We conclude that the Arbitrator's award satisfies both prongs of the SSA II test.
Under the first prong, the Arbitrator properly cancelled the grievant's performance rating after determining that the Agency had applied the grievant's performance standards in violation of the parties' collective bargaining agreement. The Arbitrator concluded that the grievant "did not receive a fair and equitable appraisal . . . [because] she was not fairly advised of alleged problems or deficiencies with her job performance[,] [yet] [s]he was evaluated on the basis of [the] alleged deficiencies . . . ." Award at 4. In this regard, the Agency concedes, in its exceptions, that "failure to notify an employee of a work deficiency may indeed lead an arbitrator to conclude that a contractual violation may have occurred, and permit him thereby to cancel the rating of record." Exceptions at 7.
The award also satisfies the second prong of the SSA II test. Once an arbitrator has cancelled an agency's rating, the arbitrator may order management to grant a particular rating "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. Here, the Arbitrator concluded that the record supported a finding that the grievant would have received an "'excellent' appraisal in each of the GJT categories rated and an overall summary rating of 'excellent' had the contract violations noted above not occurred." Award at 4. The Arbitrator noted that no deficiencies were noted in either of the grievant's performance appraisals and that the grievant's performance discussion "indicates that she was performing the assigned tasks in the five rated GJT categories as required, without any suggestion of deficiencies or room for improvement." Id. at 3. In view of these findings, we conclude that the Agency's claims that there was insufficient evidence in the record for the Arbitrator to determine wha