48:1030(112)AR - - HHS, SSA and AFGE, Local 1923 - - 1993 FLRAdec AR - - v48 p1030



[ v48 p1030 ]
48:1030(112)AR
The decision of the Authority follows:


48 FLRA No. 112

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 1923

(Union)

0-AR-2454

_____

DECISION

December 3, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator M. David Vaughn 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 exception.

The Arbitrator sustained a grievance alleging that the Agency failed to properly rate the grievant's performance on three critical Generic Job Tasks (GJTs) established by the Agency for her position. For the following reasons, we conclude that the award, in part, is contrary to section 7106(a)(2)(A) and (B) of the Statute. Accordingly, we will remand this case to the parties for resubmission to the Arbitrator for action consistent with this decision.

II. Background and Arbitrator's Award

The grievant, a GS-09 Recovery Reviewer, was rated by her immediate supervisor at level 4 (excellent) on three critical elements--GJTs 24, 40, and 112 for the period May 21, 1991, through September 30, 1991. She was rated at level 5 (outstanding) on two noncritical elements--GJTs 15 and 82 for that same period. After the scores on all the elements were added and calculated based on a prescribed formula, the grievant was assigned a summary rating of 4, corresponding to an overall rating of excellent. The grievant filed a grievance alleging that her ratings for the critical elements should have been outstanding. When the dispute was not resolved, it was submitted to arbitration.

The parties initially argued their positions on the dispute before Arbitrator Jonathan E. Kaufman who issued an award on July 27, 1992. In his award, Arbitrator Kaufman found that the grievant's immediate supervisor did not properly apply the established standards in evaluating the grievant's performance on GJTs 24, 40, and 112. Therefore, Arbitrator Kaufman directed the supervisor to reevaluate the grievant's performance on those GJTs. The Arbitrator also directed the supervisor to give the grievant a rating of "N" if he was unable to review the grievant's performance on those GJTs. Award at 3.(1)

As directed by Arbitrator Kaufman, the grievant's supervisor provided the grievant with a revised performance appraisal. The revised appraisal "was identical, in all substantive respects, to the first appraisal . . . ." Id. at 4. Subsequently, the grievant filed a grievance alleging that the revised rating was contrary to the parties' agreement, applicable laws and regulations, and Arbitrator Kaufman's award. The grievant requested that the ratings on GJTs 24, 40, and 112 be changed to "N" and that the summary rating be changed to outstanding, based on the ratings for the two non-critical elements. When the grievance over the revised appraisal was not resolved, it was submitted to arbitration.

The grievance was referred to Arbitrator M. David Vaughn, who framed the issue before him as follows:

Was Grievant's performance for the period May 21, 1991 through September 30, 1991 properly appraised? If not, what shall be the remedy?

Id. at 1.

The Union argued, before the Arbitrator, that the grievant's supervisor "did not conduct a reappraisal" and that the reappraisal was defective for the same reasons as the first appraisal. Id. at 4. The Union further argued that it was not possible for the grievant's supervisor to reappraise the grievant and contended that her ratings in the three critical GJTs should be changed to "N" and her overall appraisal raised to level 5 (outstanding).

The Agency argued that the record demonstrated that the grievant received a fair and honest appraisal and that the supervisor "properly reappraised Grievant at the same levels." Id. at 5. The Agency further argued that the Union did not show that the reappraisal was arbitrary, capricious, discriminatory, or in violation of law.

The Arbitrator sustained the grievance. The Arbitrator concluded that the supervisor's actions in reappraising the grievant were insufficient to meet his obligations under the parties' agreement and applicable law, and failed to comply with the Kaufman award. The Arbitrator also found that the "clear implication" of Arbitrator's Kaufman's direction to the Agency to reappraise the grievant was that the reappraisal be proper. Id. In order to properly reappraise the grievant, the Arbitrator concluded that the grievant's supervisor should have had a proper record of the grievant's performance during the period covered by the appraisal. The Arbitrator found, however, that the grievant's supervisor "did nothing to correct the deficiencies in the way he had applied the standards" when he reappraised the grievant. Id. at 6. In this regard, the Arbitrator found that the supervisor simply relied on the methodology and information he had used for the first appraisal and that he made no effort to go beyond the "cursory and conclusory efforts he relied on for his first appraisal[]" to determine whether the grievant's performance exceeded level 4. Id. The Arbitrator found that the supervisor was unable to conduct a proper review of the grievant's performance and that the supervisor's actions "prejudiced [the] Grievant's entitlement to a fair and objective appraisal by her rating official." Id.

As to an appropriate remedy, the Arbitrator found that the cancellation of the revised appraisal and the direction of a new appraisal did not suffice "because the record clearly indicates the proper ratings to be 'N.'" Id. The Arbitrator concluded, citing Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I), that he could "order substitution of the proper rating." Award at 6. Based on his review of the record and Arbitrator Kaufman's award, the Arbitrator ordered that the grievant should be rated "N" on the disputed GJTs and that her summary appraisal should be adjusted to reflect the ratings attained on the non-critical elements. In addition, the Arbitrator directed the Agency to make the grievant whole for any losses she suffered as a result of the improper performance appraisal.

III. Positions of the Parties

A. Agency

The Agency argues that the award is deficient because it is contrary to 5 C.F.R. §§ 430.204(b), (g), and (h), which relate to performance appraisal systems.(2) According to the Agency, these regulations require that an employee must be appraised on each critical and non-critical element in his or her performance plan "unless the employee has had insufficient opportunity to demonstrate performance on the element." Exception at 4. The Agency also contends that a summary rating level must be assigned that includes an appraisal of an employee's performance on critical elements and, at the Agency's discretion, on non-critical elements. In this case, the Agency argues that the award would impermissibly permit the appraisal to be based on two non-critical elements only, thereby causing the Agency to violate the cited regulatory provisions. The Agency also states, without elaboration, that the award violates 5 C.F.R. § 430.203, which sets forth various definitions relating to performance appraisals.

Finally, the Agency argues that the Arbitrator exceeded his authority by directing the Agency to change the ratings for the critical elements to "N" and by directing it to grant the grievant a summary rating based on two non-critical elements "when the regulation requires that a summary rating must be based on critical elements." Id. at 5. Accordingly, the Agency requests that the Authority set aside the award.

B. Union

The Union argues that the award is not contrary to 5 C.F.R. § 430.204 and is not inconsistent with an arbitrator's remedial authority under the Authority's holding in SSA I. The Union explains that the "Agency's performance appraisal system provides that a rating of 'N' be given when an employee has had insufficient opportunity to demonstrate performance on a GJT." Opposition at 6. The Union maintains that a rating of "N" is appropriately assigned to an employee "when it is not possible to rate an employee in a GJT." Id. Therefore, because the supervisor was unable to rate the grievant, the Union asserts that the rating of "N" is consistent with the Agency's rating system and is not contrary to 5 C.F.R. § 430.204(b).

The Union also maintains that the Arbitrator's direction to the Agency to provide the grievant with a summary rating based on the remaining, non-critical GJTs is not deficient. The Union argues that, under the Agency's rating system, an employee's summary rating is computed according to a mathematical formula contained on the rating form. The Union states that under this formula a score is derived "by multiplying by five the total weight of all GJT's on which the employee is rated." Id. Here, the Union notes that the GJTs on which the grievant received a rating of "N" would not be counted and the Agency would simply be required to follow the existing practice of calculating the summary rating based on the non-critical elements.

Finally, the Union contends that Arbitrator Vaughn found that the grievant's supervisor did not comply with Arbitrator Kaufman's award directing the reevaluation of the grievant's performance. The Union further argues that the Agency "chose to 'stonewall'" during the processing of the grievance by failing to explain the method used to reevaluate the grievant. Id. at 7. In the Union's view, because the Agency "blatantly ignored its obligation to participate in good faith in the negotiated grievance process and arbitration," the Arbitrator "must be allowed to fashion effective relief." Id. Alternatively, the Union claims that if the Authority finds merit to the exception, the case should be remanded to the Arbitrator to determine the grievant's rating.

IV. Analysis and Conclusions

We will find an award deficient under section 7122(a) of the Statute when it is inconsistent with law, rule, or regulation, or on other grounds similar to those applied by Federal courts in private sector labor relations cases. We find portions of the award deficient as contrary to section 7106(a)(2)(A) and (B) of the Statute. See SSA I, 30 FLRA at 1162. Accordingly, we will set aside those portions and remand the case to the parties for action consistent with this decision.

In U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (SSA II), the Authority explained the two prong test, established in SSA I, concerning the remedial authority of arbitrators 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.

As to the first prong, it is clear that the Arbitrator found that the Agency had applied the performance standards in violation of the parties' collective bargaining agreement and applicable law. In this regard, the Arbitrator specifically concluded that the Agency failed "to meet [its] obligations under the Agreement and applicable law . . . ." Award at 6. Consequently, we find that the Arbitrator satisfied the first prong of the SSA II test.

However, we find that the award does not satisfy the second prong of the required SSA II analysis. Under that part of the test, an arbitrator may order management to rate a grievant at a particular level if the arbitrator is able to determine, based on the record, what the rating should have been. See, for example, U.S. Department of the Army, Camp Stanley Storage Activity, San Antonio, Texas and American Federation of Government Employees, Local 3961, 48 FLRA 672, 677 (1993). Alternatively, an arbitrator may direct an agency to reevaluate a grievant's performance where the arbitrator is unable to determine from the record what the rating would have been under a correct application of the performance standard in question. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, AFL-CIO, 48 FLRA 406, 408-09 (1993).

In this case, the Arbitrator failed either to determine what the ratings should have been on the three critical elements or to direct the Agency to reevaluate the grievant's performance on those elements. Instead, the Arbitrator directed the Agency to assign a designation indicating that three GJTs were "not applicable." Although both parties acknowledge that use of such a designation is appropriate when an employee has not had a sufficient opportunity to demonstrate performance on a GJT, no such circumstances exist here. Rather, it is undisputed that the grievant had an opportunity to demonstrate performance on those GJTs and, in fact, was rated on the corresponding critical elements by the Agency.

Nothing in SSA II permits an arbitrator essentially to ignore critical elements and a grievant's performance on GJTs where, as here, the grievant was afforded an opportunity to perform duties encompassed by the disputed critical GJTs and, therefore, could have been rated under established critical elements. Consequently, we find that the portion of the award directing the Agency to assign the grievant a rating of "N" on GJTs 24, 40, and 112 is deficient because it conflicts with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, and we will set it aside. To the extent the Arbitrator's further order directing the Agency to assign a summary rating based on the remaining non-critical elements is tied to the "N" rating, we find that that portion of the award must also be set aside.

Ordinarily, when an arbitrator has directed a remedy that is inconsistent with the second prong of SSA II, we set aside the unlawful portion of the award and modify the award to direct the agency to reevaluate the grievant. See, for example, U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 45 FLRA 626, 629-30 (1992) (Authority set aside portion of award directing agency to raise grievants' ratings and, instead, ordered that agency reevaluate grievants); American Federation of Government Employees, Local 2814 and U.S. Department of Transportation, Federal Railroad Administration, Washington, D.C., 43 FLRA 624, 631-32 (1991) (Authority set aside portion of award directing agency to raise all of grievant's performance appraisals after a certain date and, instead, directed that agency reevaluate the grievant's performance rating on a particular critical job element).

In this case, however, we find that an order setting aside the "N" designation and directing the Agency to reevaluate the grievant would not suffice. In this regard, we note that the grievance in this case resulted from the supervisor's reappraisal of the grievant following a prior arbitration award in which the arbitrator found that that supervisor violated law and the parties' agreement in evaluating the grievant. Thus, the supervisor has had two opportunities to rate the grievant and, in both instances, was found to have violated law and the parties' agreement.(3) Under these circumstances, and noting particularly Arbitrator Vaughn's finding that this supervisor "was unable . . . to conduct a proper review [of the grievant's performance,]", Award at 6, we find that it is appropriate to remand this case to the parties for resubmission to Arbitrator Vaughn with instructions that Arbitrator Vaughn determine, based on the record, what the grievant's rating should be. See, for example, U.S. Department of Health and Human Services, Administration for Children and Families and National Treasury Employees Union, NTEU Chapter 250, 46 FLRA 1107, 1112-14 (1993) (award remanded where arbitrator improperly altered content of established performance standard by excluding a matter from the grievant's performance appraisal). Further, we find no circumstances in this case that would preclude the Arbitrator from exercising his discretion to reopen the record to enable the parties to submit the documentation on which the Arbitrator can determine the grievant's rating. Compare U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 39 FLRA 692, 695 (1991) (where an award is set aside, and not remanded for further action, an arbitrator is precluded from reopening the matter unless both parties request the arbitrator to do so). If the record does not permit such a determination, and the Arbitrator chooses not to reopen the record, Arbitrator Vaughn may direct the Agency to have a different supervisor rate the grievant. See, for example, American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, 45 FLRA 124, 130-33 (1992) (Authority upheld award in which arbitrator directed the agency to have a supervisor other than the one whose conduct violated the parties' collective bargaining agreement reevaluate the grievant's performance).

Accordingly, we will set aside the portions of the award directing the Agency to assign a rating of "N" on GJTs 24, 40, and 112 and to compute the summary rating on the basis of GJTs 15 and 82. We will also remand the case to the parties for resubmission to Arbitrator Vaughn for action consistent with this decision. We will leave undisturbed the portions of the award making the grievant whole for any losses, including pay or awards, that were suffered as a result of the Agency's improper conduct and the method of calculation. Such a remedy is contingent, of course, on the outcome of the grievant's reappraisal.

Finally, in light of our decision to remand this case because it directly interferes with management's rights, we do not address whether the award also violates 5 C.F.R. §§ 430.203 and 430.204. We note, however, that as a result of the remand, the grievant will be rated on all critical elements of her position.

V. Decision

The portions of the award directing the Agency to assign a designation of "N" on GJTs 24, 40 and 112 and to assign a summary rating on the basis of GJTs 15 and 82 are set aside. The award is remanded to the parties for resubmission to the Arbitrator for action consistent with this decision.

APPENDIX

5 C.F.R. §§ 430.204 (b), (g) and (h) provide as follows:

(b) Under each appraisal system, critical elements must be included and non-critical elements may be included in individual perfo