[ v21 p672 ]
21:0672(86)AR
The decision of the Authority follows:
21 FLRA No. 86
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF HEARINGS AND APPEALS,
REGION II
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760
Union
Case No. 0-AR-1016
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exception to the award of
Arbitrator Peter Florey filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute and part 2425 of the
Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance concerned the denial of the recommendation of the
grievant's supervisor that the grievant, a hearing specialist, be
promoted to GS-11 as of June 10, 1984. The grievant thereafter was
promoted prospectively, but the grievance was submitted to arbitration
protesting the earlier denial. The Arbitrator noted that in order for a
hearing specialist to be eligible for promotion, the specialist must be
determined to be performing at least at the fully satisfactory level of
the job elements of the position to which the employee is to be
promoted. The Arbitrator further noted with respect to the grievant
that his promotion had been denied because it had been determined
statistically that he was not averaging at least 1.9 decisions per day,
the fully satisfactory level established for the quantitative
case-processing element of the GS-11, hearing specialist position. The
Arbitrator concluded that the performance standards used to measure the
grievant's numerical case production, at least up until the time of the
grievance, failed to comply with the requirements of the parties'
collective bargaining agreement that performance standards must
accurately evaluate performance and procedures must be applied which
reasonably ensure the accurate evaluation of performance. The
Arbitrator also concluded that management had failed to comply with the
agreement obligation that factors affecting performance that are beyond
the control of the employee be considered. Moreover, the Arbitrator
ruled that but for these erroneous applications of the dictates of the
collective bargaining agreement, the recommended promotion of the
grievant would originally have been approved. Thus, as his award, the
Arbitrator effectively ordered the grievant promoted retroactively to
June 10, 1984, with backpay.
III. EXCEPTIONS
In one of its exceptions, the Agency contends that the award is
contrary to the Back Pay Act, 5 U.S.C. Section 5596, and section 7106(a)
of the Statute. In support the Agency essentially maintains that the
sole basis for the award of a retroactive promotion and backpay was the
Arbitrator's determination that but for management's failure to comply
with the parties' collective bargaining agreement with respect to the
appraisal of the grievant's case production as not qualifying him for
promotion, his recommended promotion would orignally have been approved.
In this respect the Agency first argues that his determination as to
the appraisal of the grievant's performance is contrary to section
7106(a) because it negated legitimately established performance
standards. The Agency further argues that consequently such
determination cannot constitute the required finding under the Back Ay
Act that the grievant was affected by an unjustified or unwarranted
personnel action which directly resulted in a loss of pay and that
accordingly the award of a retroactive promotion and backpay is
deficient.
IV. ANALYSIS AND CONCLUSIONS
In Bureau of Engraving and Printing, U.S. Department of the Treasury
and Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20
FLRA No. 39 (1985), and Bureau of Prisons, Department of Justice and
American Federation of Government Employees, Local 148, 21 FLRA No. 15
(1986), the Authority discussed in detail the role of an arbitrator in
resolving disputes pertaining to performance appraisal matters.
Specifically, on the basis of section 7106(a)(2)(A) and (B) of the
Statute, providing for management's right to direct employees and to
assign work, and on decisions of the Authority and the courts, the
Authority stated that an arbitrator may not determine that a grievance
directly challenging an agency's identification of job elements or
establishment of performance standards is grievable or arbitrable. The
Authority further stated that an arbitrator also may not render an award
substituting his or her judgment concerning job elements and performance
standards for that of management. Bureau of Prisons, slip op. at 3-4;
Bureau of Engraving and Printing, slip op. at 2.
In both of these cases, the Authority also acknowledged that there is
a duty to bargain under section 7106(b)(3) on appropriate arrangements
for employees adversely affected by management's exercise of its
authority under section 7106(a), e.g., actions which adversely affect
employees taken under the performance standards established by
management. Bureau of Prisons at 4; Bureau of Engraving and Printing
at 3 (both cases citing American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Managemen, Washington, D.C., 3
FLRA 784, 791-92 (1980) (proposal 5)). In OPM, Washington the Authority
specifically found that the proposal in dispute merely established a
general, nonquantitative requirement by which the application of
critical elements and performance standards established by management
may subsequently be evaluated in a grievance by an employee who believes
that he or she has been adversely affected by the application of
management's performance standard to him or her. To that extent, the
Authority held that the proposal was within the duty to bargain. The
Authority noted that under such a proposal an employee against whom
management takes disciplinary action for unacceptable performance may,
in a grievance of such action pursuant to section 7121(e) of the
Statute, raise the issue of whether the performance standards as applied
to him or her meet the contractual requirements, i.e., the arbitrator of
such a grievance would simply determine if the standard established by
management as applied to the grievant complied with the "fair and
equitable" requirements of the parties' agreement. In finding that
proposal to be within the duty to bargain, the Authority specifically
noted that such an arrangement did not affect management's discretion to
determine the content of performance standards nor did it authorize an
arbitrator to substitute his or her judgment for that of management as
to the content of the standards. The Authority was distinguished
between proposed grievance procedures subjecting management's
identification of critical elements and establishment of performance
standards to arbitral review and grievance procedures relating only to
the application of such elements and standards to an individual employee
through the appraisal process. Bureau of Prisons at 4; Bureau of
Engraving and Printing at 3.
Consistent with these holdings and the Statute, the Authority in both
cases specifically advised that an arbitrator may resolve an employee's
grievance claiming to have been adversely affected in his or her
performance appraisal by management's application of the established
standards. The Authority further advised that in resolving the
grievance, the arbitrator properly may determine that management applied
the established standards in violation of an appropriate,
nonquantitative review criterion, and the arbitrator to that extent may
sustain the grievance. The Authority also stated that in sustaining the
grievance, an arbitrator as a remedy may direct that the grievant's work
product be properly evaluated by management or where appropriate that
the grievant's work product as appraised by management be granted the
rating to which entitled under the established elements and standards.
The Authority cautioned, however, that the arbitrator may not substitute
his or her judgment for that of the agency as to the appropriateness of
elements and standards established by management. The Authority further
cautioned that the arbitrator may not conduct an independent evaluation
of an employee's performance under the elements and standards
established by management and may not substitute his or her own judgment
for that of management as to what that employee's performance evaluation
and rating should be. Bureau of Prisons at 5-6; Bureau of Engraving
and Printing at 4.
In this case the Authority finds that in sustaining the grievance,
the Arbitrator improperly substituted his judgment for that of the
Agency as to the appropriateness of the established standards.
Specifically, the Authority concludes that an substantial part, the
Arbitrator's determination that management's appraisal of the grievant's
case production failed to comply with the parties' agreement is contrary
to management's right under the Statute to establish the content of
performance standards. Thus, to the extent that the Arbitrator's
determination that the agreement was violated is based on his finding
that the performance standards were "unfair," because they failed to
account for the grievant's situation of having to write for six judges
and of primarily having prepared affirmations, see Award at 12, the
Authority finds that determination deficient because it constitutes an
improper review by the Arbitrator of the content of the standards and a
substitution by the Arbitrator of his judgment for that of management as
to the proper content of those standards. See, e.g., American
Federation of Government Employees, Local 32 and Office of Personnel
Management, 16 FLRA 948 (1984)(proposal 3). Such determination by the
Arbitrator was not limited to an assessment of the application of the
established standards to the grievant. Instead, it constituted an
improper inquiry by the Arbitrator into whether the established
standards themselves made appropriate allowances for the grievant's
situation. See, e.g., American Federation of Government Employees,
Local 32 and Office of Personnel Management, 19 FLRA No. 9 (1985)
(proposal 3). Consequently, to this extent the Arbitrator's
determination that management's appraisal of the grievant's case
production was contrary to the parties' agreement is contrary to the
Statute. That determination therefore cannot constitute the finding
required in support of the award of retroactive promotion and backpay
that the grievant was affected by an unjustified or unwarranted
personnel action.
Moreover, by in effect determining that the grievant's performance
would have been rated at least as "fully satisfactory," the Arbitrator
improperly conducted an independent evaluation of the grievant's
performance. As indicated in the discussion of Bureau of Prisons and
Bureau of Engraving and Printing, it was appropriate for the Arbitrator
to have determined that the appraisal by management of the grievant's
production violated the collective bargaining agreement because in
applying the established performance standards to the grievant,
management failed to consider factors that were beyond the control of
the grievant. However, in the circumstances of this case, the
Arbitrator was in no manner authorized to determine, as he in effect
did, that the grievant's case production would have been rated at least
as "fully satisfactory" but for the violation of the agreement. As
noted, management's appraisal of the grievant's numerical case
production was based on the statistical determination of the grievant's
average daily production and the rating of that production under the
established standards. The Authority finds that this is not the type of
appraisal that would permit an arbitrator in an objective,
nondiscretionary, and essentially mechanistic manner to determine
without an independent evaluation that an aggrieved employee was
entitled to a different rating under the established standards. See
Bureau of Prisons at 5-6; Bureau of Engraving and Printing at 4. In
this case, the Arbitrator, in determining that the grievant's
performance would have been rated higher but for the violation of the
agreement, necessarily conducted an independent evaluation of the
grievant's case production performance under the established standards
and clearly substituted his judgment for that of management as to what
the grievant's performance evaluation should have been. Although the
Arbitrator properly could have ordered the grievant reevaluated on
finding that management had failed to consider factors that were beyond
the control of the grievant, the Arbitrator instead independently
determined what that rating would have been. Compare Bureau of Prisons
(in which case the arbitrator expressly examined the performance
standards and the regulatory definition of outstanding performance,
specifically evaluated the application of the standards to the
grievant's performance as described in his performance appraisal, and,
as his award, determined in accordance with the definition of
outstanding performance and management's own appraisal of the grievant's
performance that the grievant was entitled under the established
standards to a rating of "outstanding" as to three of his job elements).
For these reasons, the Arbitrator's determination that the grievant's
performance would have been rated higher is also contrary to the Statute
and the decisions of the Authority. Such determination cannot
constitute the finding required in support of the award of retroactive
promotion and backpay that but for the violation of the collective
bargaining agreement by management in failing to consider factors
affecting performance beyond the grievant's control, the recommended
promotion of the grievant originally would have been approved.
V. DECISION
The Authority finds that the Arbitrator's determination with respect
to the appraisal of the grievant's quantitative case production
performance is deficient as contrary to management's rights under
section 7106(a)(2)(A) and (B) of the Statute. Consequently, such
determination cannot constitute the requisite finding that the grievant
was affected by an unjustified or unwarranted personnel action which
directly resulted in the withdrawal or reduction in the pay, allowances,
or differentials that the grievant otherwise would have earned or
received. The Authority further finds that the award of a retroactive
promotion and backpay is contrary to the Back Pay Act. Therefore,
paragraphs 1-2 of the award, constituting the Arbitrator's determination
with respect to management's appraisal of the grievant's performance and
the award of a retroactive promotion and backpay, are struck from the
award and the following language substituted: /*/
For the period in dispute, management shall reevaluate the
grievant's numerical case production under the quantitative
case-processing element of the GS-11 hearing specialist position
considering factors that were beyond the control of the grievant.
After reevaluating the grievant's performance, management shall
take whatever action may be appropriate concerning the denial of
the recommendation that the grievant be promoted to GS-11 as of
June 10, 1984.
Issued, Washington, D.C., May 9, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In view of this decision, the Authority need not address the
Agency's other exception to the award.