Social Security Administration (Agency) and American Federation of Government Employees, Social Security Administration, Local 1923, AFL-CIO (Union) 

 7 FLRA No. 82
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 SSA, LOCAL 1923, AFL-CIO
 Union
 
                                            Case No. O-AR-66
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY ON
 EXCEPTIONS TO THE AWARD OF ARBITRATOR LOUIS ARONIN FILED BY THE AGENCY
 UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE) /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS CASE AROSE WHEN THE
 GRIEVANT CHALLENGED HIS PERFORMANCE EVALUATION FOR THE RATING PERIOD IN
 QUESTION, CLAIMING HE SHOULD HAVE RECEIVED AS TO WORK PRODUCT A "D" ON
 QUANTITY AND AN "E" ON QUALITY INSTEAD OF THE "C" RATINGS WHICH HE
 RECEIVED.  /2/ THE GRIEVANCE WAS NOT RESOLVED AND WAS SUBMITTED TO
 ARBITRATION UNDER THE SUPPLEMENTAL ARBITRATION PROVISION OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.
 
    THE ARBITRATOR STATED THE ISSUE TO BE WHETHER THE GRIEVANT WAS
 PROPERLY RATED "C" ON BOTH QUANTITY AND QUALITY.  HOWEVER, BECAUSE THE
 GRIEVANT WAS ON LIGHT DUTY DURING THE RATING PERIOD IN ACCORDANCE WITH A
 MEDICAL CERTIFICATE AND BECAUSE IT WAS ESTABLISHED THAT THE ACTIVITY HAD
 A PRACTICE OF NOT RATING EMPLOYEES ON LIGHT DUTY HIGHER THAN "C" ON
 QUANTITY AND QUALITY OF WORK PRODUCT, THE ARBITRATOR CONSIDERED THE
 GRAVAMEN OF THIS CASE TO BE WHETHER THE GRIEVANT'S DISPUTED RATINGS WERE
 BASED ON HIS ACTUAL PRODUCTION OR ON THE RATING PRACTICE WITH RESPECT TO
 EMPLOYEES ON LIGHT DUTY.
 
    AS TO THE GRIEVANT'S ACTUAL PRODUCTION, THE ARBITRATOR FOUND, BASED
 UPON EVIDENCE RELATING TO SPOT CHECKS OF THE GRIEVANT'S WORK BY HIS
 SUPERVISOR, THAT THE GRIEVANT'S RATING OF "C" ON QUANTITY OF WORK
 PRODUCED FOR THE RATING PERIOD WAS INCORRECT GIVEN THE AGENCY'S
 QUANTITATIVE STANDARDS FOR THE WORK THE GRIEVANT PERFORMED.  HE FOUND
 FURTHER THAT THE GRIEVANT'S PRODUCTION PROPERLY RATED A "D".
 CONSEQUENTLY, THE ARBITRATOR CONCLUDED THAT THE FAILURE TO RATE THE
 GRIEVANT "D" IN QUANTITY WAS BASED ON THE PRACTICE OF LIMITING THE
 RATINGS OF EMPLOYEES WHO WERE ON LIGHT DUTY.  HE DETERMINED THAT SUCH A
 PRACTICE, RATHER THAN ONE WHICH EVALUATED EMPLOYEES ON THEIR ACTUAL
 PERFORMANCE, WAS INCONSISTENT WITH THE OBJECTIVES AND PURPOSES OF
 PERFORMANCE APPRAISAL PROCEDURES CONTAINED IN THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  FINDING THE PRACTICE OF SO APPLYING THE STANDARD
 TO THE GRIEVANT TO BE INVALID AS ARBITRARY AND DISCRIMINATORY, THE
 ARBITRATOR, ON THE BASIS OF THE GRIEVANT'S ACTUAL PRODUCTION, ORDERED
 THE GRIEVANT'S RATING ON QUANTITY OF WORK PRODUCT CHANGED TO "D".
 
    AS TO THE RATING WITH RESPECT TO THE QUALITY OF THE GRIEVANTS' WORK,
 THE ARBITRATOR STATED THAT THERE WAS NO EVIDENCE AS TO THE STANDARDS ON
 WHICH QUALITY IS RATED AND FOUND, THEREFORE, THAT THERE WAS NO BASIS IN
 THE RECORD FOR DETERMINING THE PROPER RATING AS TO QUALITY.  HOWEVER, IN
 VIEW OF THE GRIEVANT'S QUANTITY RATING, THE ARBITRATOR CONCLUDED THAT
 THE SAME IMPROPER PRACTICE MAY HAVE BEEN USED TO DETERMINE THE RATING ON
 QUALITY OF WORK.  THERFORE, THE ARBITRATOR DIRECTED THE ACTIVITY TO
 EVALUATE THE QUALITY OF THE GRIEVANT'S WORK PRODUCT BASED ON THE SPOT
 CHECKS MADE DURING THE PERIOD AND TO REVISE THE GRIEVANT'S RATING, IF
 APPROPRIATE.  IN THIS RESPECT HE RETAINED JURISDICTION AND STATED THAT
 EITHER PARTY COULD REQUEST THAT THE MATTER BE REOPENED IF NO AGREEMENT
 COULD BE REACHED ON THE GRIEVANT'S QUALITY RATING.
 
    AS ONE OF ITS EXCEPTIONS THE AGENCY CONTENDS THAT THE AWARD IS
 CONTRARY TO SECTION 7106(A) OF THE STATUTE.  SPECIFICALLY, THE AGENCY
 ARGUES THAT BY FINDING THE ACTIVITY'S PRACTICE OF LIMITING THE RATINGS
 OF EMPLOYEES ON LIGHT DUTY UNSUITABLE, THE AWARD CONFLICTS WITH
 MANAGEMENT'S RIGHT UNDER THE STATUTE TO RATE AND EVALUATE ITS EMPLOYEES.
  HOWEVER, THE AGENCY HAS FAILED TO DEMONSTRATE THAT THE AWARD IS IN ANY
 MANNER CONTRARY TO SECTION 7106(A) OF THE STATUTE.  ALTHOUGH THE
 AUTHORITY HAS HELD THAT AGENCY MANAGEMENT HAS THE RIGHT UNDER SECTION
 7106(A)(2)(A) AND (B) TO DETERMINE THE CONTENT OF PERFORMANCE STANDARDS,
 THE AUTHORITY HAS ALSO HELD THAT THE ESTABLISHMENT OF CRITERIA, E.G.,
 "FAIR AND EQUITABLE," BY WHICH THE APPLICATION OF PERFORMANCE STANDARDS
 TO AN EMPLOYEE MIGHT SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE IS NOT
 INCONSISTENT WITH THE RIGHTS OF MANAGEMENT UNDER SECTION 7106(A).
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
 OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980).
 IN TERMS OF THIS CASE, RATHER THAN DENYING MANAGEMENT ITS RIGHT TO
 DETERMINE THE CONTENT OF ITS PERFORMANCE APPRAISAL STANDARDS OR
 REQUIRING IT TO CHANGE ITS STANDARDS, THE ARBITRATOR, CONSISTENT WITH
 THE AUTHORITY'S DECISION IN AFGE LOCAL 32, EVALUATED THE ACTIVITY'S
 PRACTICE OF LIMITING THE RATING OF EMPLOYEES ON LIGHT DUTY AS APPLIED TO
 THE GRIEVANT AND FOUND IT TO BE ARBITRARY AND DISCRIMINATORY.
 CONSEQUENTLY, THE AWARD DOES NOT CONFLICT WITH RIGHTS OF MANAGEMENT
 UNDER SECTION 7106(A) AND THIS EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT.
 
    IN A SECOND AND THIRD EXCEPTION THE AGENCY ESSENTIALLY CONTENDS THAT
 THE AWARD IS DEFICIENT BECAUSE IT IS BASED ON NONFACTS AND IS NOT BASED
 ON EVIDENCE INCLUDED AT THE HEARING.  IN SUPPORT OF THESE EXCEPTIONS,
 THE AGENCY ARGUES THAT IN REACHING HIS AWARD THE ARBITRATOR DISREGARDED
 TESTIMONY AS TO VISUAL OBSERVATIONS OF THE GRIEVANT'S PRODUCTION;  THAT
 THE AWARD IS BASED ON THE GRIEVANT'S OWN DATA, WHICH THE AGENCY ASSERTS
 WAS NOT ADMITTED AS EVIDENCE;  AND THAT THE AWARD IS BASED ON EVIDENCE
 "MANUFACTURED" BY THE ARBITRATOR BY EXTRAPOLATION.  HOWEVER, THESE
 EXCEPTIONS FAIL TO ESTABLISH THAT THE AWARD IS IN ANY MANNER DEFICIENT.
 CONTRARY TO THE AGENCY'S ASSERTIONS, IT IS CLEAR FROM THE AWARD THAT THE
 ARBITRATOR EXPRESSLY BASED HIS FINDINGS AS TO THE QUANTITY OF WORK
 PRODUCED BY THE GRIEVANT ON THE EVIDENCE BEFORE HIM.  THUS, THESE
 EXCEPTIONS CONSTITUTE NOTHING MORE THAN DISAGREEMENT WITH THE
 ARBITRATOR'S FINDINGS OF FACT AND THE ARBITRATOR'S EVALUATION OF THE
 EVIDENCE AND TESTIMONY PRESENTED, AND CONSEQUENTLY THESE EXCEPTIONS
 PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER THE STATUTE.
 MID-AMERICAN PROGRAM SERVICE CENTER, SOCIAL SECURITY ADMINISTRATION,
 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE AND LOCAL 1336, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 5 FLRA NO. 34(1981).
 
    AS A FOURTH EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY UNDER THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT BY ADDRESSING THE SUITABILITY OF THE MANNER IN WHICH EMPLOYEES
 ON LIMITED DUTY ARE APPRAISED.  SPECIFICALLY, THE AGENCY ARGUES THAT
 UNDER THE SUPPLEMENTAL ARBITRATION PROCEDURE THE SUITABILITY OF THIS
 PRACTICE COULD BE ADDRESSED IF IT AFFECTED THE GRIEVANT'S PERFORMANCE
 APPRAISAL.  REPEATING ITS ARGUMENT THAT THE ARBITRATOR IMPROPERLY
 REEVALUATED THE GRIEVANT AS "D" FOR QUANTITY OF WORK PRODUCT, THE AGENCY
 MAINTAINS THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY ADDRESSING THE
 SUITABILITY OF THE RATING PRACTICE FOR EMPLOYEES ON LIMITED DUTY.
 BECAUSE THIS EXCEPTION IS PREMISED SOLELY ON A CONTENTION WHICH THE
 AUTHORITY HAS ALREADY DETERMINED PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT AND BECAUSE SUCH CONTENTION DOES NOT INDEPENDENTLY PROVIDE A
 BASIS FOR FINDING THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY IN THIS
 CASE, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT
 UNDER THE STATUTE.
 
    AS ITS FINAL EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR
 VIOLATED THE VOLUNTARY LABOR ARBITRATION RULES OF THE AMERICAN
 ARBITRATION ASSOCIATION (AAA) WHICH APPLIED TO THIS CASE.  TO SUPPORT
 THIS EXCEPTION, THE AGENCY REPEATS CONTENTIONS MADE IN SUPPORT OF OTHER
 EXCEPTIONS, ASSERTS THAT THE ARBITRATOR'S RETENTION OF JURISDICTION WAS
 IMPROPER, AND STATES THAT THERE WERE EX PARTE CONTACTS BETWEEN THE UNION
 AND THE ARBITRATOR.  /3/
 
    THIS EXCEPTION AND THESE ASSERTIONS PROVIDE NO BASIS FOR FINDING THE
 AWARD DEFICIENT UNDER THE STATUTE.  THE AGENCY HAS TOTALLY FAILED TO
 SUBSTANTIATE IN ANY MANNER THAT THE AWARD OR THE ARBITRATOR'S CONDUCT
 WAS CONTRARY TO THE AAA RULES.  MOREOVER, THE AGENCY HAS FAILED TO SHOW
 IN ANY EVENT THAT SUCH AN EXCEPTION PROVIDES A BASIS FOR FINDING AN
 ARBITRATION AWARD DEFICIENT UNDER SECTION 7122(A) OF THE STATUTE.  THE
 AGENCY DOES NOT ESTABLISH AND IT IS NOT OTHERWISE APPARENT THAT THE AAA
 RULES CONSTITUTE "RULE(S)" WITHIN THE MEANING OF SECTION 7122(A)(1) OR
 THAT FEDERAL COURTS IN PRIVATE SECTOR CASES WILL FIND AN AWARD DEFICIENT
 WITHIN THE MEANING OF SECTION 7122(A)(2) WHEN THERE HAS NOT BEEN
 COMPLIANCE WITH SUCH RULES.
 
    FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    SEC. 7122.  EXCEPTIONS TO ARBITRAL AWARDS
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR REGULATIONS.
 
    /2/ THE RECORD INDICATES THAT THE "C" RATING IS DEFINED AS "MET AND
 SOMETIMES EXCEEDED REQUIREMENTS," THE "D" AS "EXCEEDED REQUIREMENTS, BUT
 NOT TO AN EXCEPTIONAL DEGREE," AND THE "E" AS "EXCEEDED REQUIREMENTS TO
 AN EXCEPTIONAL DEGREE."
 
    /3/ WHILE THE AGENCY ALLEGED IN ITS EXCEPTION THAT THERE WERE EX
 PARTE CONTACTS BETWEEN THE UNION AND THE ARBITRATOR, A STATEMENT OF THE
 FACTS BY THE AGENCY IN AN "AMENDMENT" TO ITS EXCEPTION SUBSEQUENTLY
 FILED WITH THE AUTHORITY APPEARS TO INDICATE THAT NO SUCH CONTACT
 OCCURRED.