49:0918(88)AR - - AFGE, Local 2006 and HHS, SSA, Philadelphia Regional Office - - 1994 FLRAdec AR - - v49 p918
[ v49 p918 ]
The decision of the Authority follows:
49 FLRA No. 88
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
PHILADELPHIA REGIONAL OFFICE
May 11, 1994
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 Thomas M. Phelan 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 a grievance disputing the grievant's annual performance rating. 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
The grievant grieved her annual performance appraisal, in which she received a level-3 rating in each of the seven generic job tasks (GJTs) in her performance plan and an overall summary rating of fully successful.(1) The grievant asserted that her level-3 ratings should be changed to level 5, that her summary rating should be raised to outstanding, and that she should receive an appropriate performance award. When the grievance was not resolved, it was submitted to arbitration.(2) The Arbitrator framed the issue as follows:
The issue . . . is whether the grievant's performance standards were applied in [a fair and equitable] fashion when she was rated on all seven of her GJTs.
Award at 9.
The Arbitrator determined that the Agency violated Article 21, Section 3 of the parties' collective bargaining agreement by not applying the grievant's performance standards fairly and equitably.(3) In reaching this conclusion, the Arbitrator compared the grievant's part-year progress review with the part-year progress review of another employee who was evaluated against the same GJTs and who had received level-5 ratings on each GJT and a summary rating of outstanding. He determined that, at the time of the part-year progress reviews, "the evidence indicates that both employees were performing at the same level against their respective performance plans." Id. at 13. The Arbitrator found that the record did not demonstrate that either the grievant's or the other employee's performance changed between the progress review and the end of the appraisal period. According to the Arbitrator, "the application of the performance standards should have resulted in a determination that the two employees had the same summary rating level if the performance standards were being applied in a fair and equitable manner." Id. at 14.
The Arbitrator then found that there was sufficient evidence in the record on which to determine the grievant's proper performance ratings. The Arbitrator concluded that "the record indicates that the grievant was performing at the same level as the other employee who received a summary rating level of outstanding, and since no issue has been raised as to that rating being the proper one, the grievant's performance should have been similarly rated on each of her GJTs and the summary rating level." Id. at 14-15. Accordingly, as his award, the Arbitrator cancelled the grievant's appraisal and rating and directed that management award the grievant level-5 ratings on all seven of her GJTs and a summary rating of outstanding. The Arbitrator also directed the Agency to pay the grievant any difference between the monetary award she received for her fully successful evaluation and the amount awarded for an outstanding rating.
III. Positions of the Parties
Citing 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 (1990) (SSA II), the Agency asserts that the award does not satisfy the first prong of the SSA II test. According to the Agency, the Arbitrator improperly compared the grievant's progress review to the progress review of another employee instead of comparing the grievant's full-year performance to the applicable performance standards. The Agency also contends that the award does not satisfy the second prong of the test because the Arbitrator lacked sufficient information to warrant raising the grievant's ratings.
The Union argues that the Agency's exceptions should be dismissed because they are an attempt to relitigate the grievance before the Authority and constitute mere disagreement with Arbitrator's evaluation of the evidence.
IV. Analysis and Conclusions
In SSA II, we described the two-prong test, established in SSA I, 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 appraisal and summary rating after he determined that the Agency had applied the grievant's performance standards in violation of the parties' collective bargaining agreement. Noting the Agency's contractual obligation to apply performance standards in a fair and equitable manner, the Arbitrator compared the grievant's progress review and performance with those of another employee who was evaluated against the same GJTs and specifically concluded that the grievant's lower performance evaluation on each of the GJTs and summary rating indicated that management "was not applying the performance standards the same way to both employees." Award at 13. Accordingly, the Arbitrator acted in accordance with SSA II in cancelling the grievant's performance appraisal and summary rating.
The award also satisfies the second prong of the SSA II test. As the Arbitrator noted, he was authorized to direct the Agency to grant the grievant a particular rating provided the record afforded a basis for determining what the grievant's rating would have been absent the Agency's violation of the parties' agreement.
In this regard, the Arbitrator discussed the progress reviews received by the grievant and another employee who was evaluated against the same seven GJTs. According to the Arbitrator, "since the language used by the supervisor who evaluated both of [the employees] was identical for each GJT, the progress reviews would have to be considered as indicating that both employees were making the same progress against their respective plans." Award at 12. The Arbitrator then discussed evidence concerning the two employees' performance during the interval between the progress reviews and the end of the appraisal period. He found that "[n]othing indicated a significant drop in the level of [the grievant's] performance, and . . . nothing indicating a significant increase in the level of performance of the other employee." Id. at 13. In particular, the Arbitrator stated that, based on the record, the grievant "was performing at the same level as the other employee . . . ." Id. at 14. The Arbitrator concluded that, as the other employee received a summary rating of outstanding and as "no issue ha[d] been raised as to [the other employee's] rating being the proper one," the grievant would have received that rating if management had applied the relevant performance standards fairly and equitably, as required by the parties' agreement. Id.
In view of these findings, we reject the Agency's claim that there was insufficient evidence for the Arbitrator to determine what the grievant's evaluation and rating should have been, absent the Agency's violation of the parties' agreement. In our view, the claim constitutes mere disagreement with the Arbitrator's evaluation of the evidence and does not demonstrate that the award is deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Boston Region, Office of Program Integrity and Reviews and American Federation of Government Employees, Local 3760, 46 FLRA 1147, 1151 (1993).
In sum, we find that the Agency's exceptions do not demonstrate that the award is deficient. Consequently, we will deny the exceptions.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The record indicates that a five-level rating system is used for each GJT. Level 3 constitutes the fully successful level and level 5 constitutes the outstanding level. Performance standards are written only for levels 2, 3, and 4. Performance at levels 2 and 4 is distinguished from performance at level 3 based on the amount of supervision and/or correction required to produce the results required at the fully successful performance level.
2. During the processing of this grievance, the Agency raised the grievant's ratings on two of her GJTs from level 3 to level 4.
3. Article 21, Section 3A of the parties' national agreement provides, in pertinent part:
The performance standards, the critical and non-critical elements a