U.S. Federal Labor Relations Authority

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25:0513(37)AR - SSA and AFGE Local Union 1923 -- 1987 FLRAdec AR

[ v25 p513 ]
The decision of the Authority follows:

 25 FLRA No. 37
                                            Case No. 0-AR-1186
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on an exception to the award of
 Arbitrator Donald W. Jarrell 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.
    A grievance was filed protesting the grievant's performance rating
 for Generic Job Task (GJT) 1, which is entitled "adjudicates claims,"
 and requesting that the rating be raised to the next highest level.  The
 grievance was submitted to arbitration on the issue of whether the
 grievant was rated in accordance with the parties' collective bargaining
    The Arbitrator determined that the grievant's appraisal was arbitrary
 and in violation of the parties' agreement.  Specifically, he found, in
 agreement with the Union, that the Agency had not defined " timeliness"
 in the performance standards for GJT 1 so that the grievant's
 performance could be accurately evaluated.  Moreover, he noted that the
 grievant's immediate supervisor was confused about the specific
 standards to be applied in measuring performance under GJT 1.  In this
 regard, he determined that the supervisor had mistakenly applied the
 elements of another GJT relating to technical assistance on cases in
 rating her performance under GJT 1.  He also agreed with the Union that
 her supervisor had used comparative standards, in violation of the
 parties' agreement.  In other words, the supervisor had compared the
 grievant's GJT 1 performance with that of other employees' performance
 rather than with generic job task standards designed to specifically
 measure the adequacy of GJT 1 work.  The Arbitrator finally found that
 the grievant's supervisor had erroneously evaluated her performance by
 considering the proportion of aged cases in her case backlog and by
 failing to recognize the extra work she performed.  This last factor was
 crucial because it was the sole reason the grievant was not rated at a
 higher level for her performance of GJT 1 tasks.  The Arbitrator then
 determined, primarily on the basis of the grievant's performance of
 extra claims adjudicator work, that the grievant's performance rating
 should have been rated at a higher level.  Consequently, the Arbitrator
 sustained the grievance and as his award directed the Agency to "change
 its appraisal of grievant's performance on GJT 1 from level 2 to level 3
 and to change its summary appraisal accordingly from fully satisfactory
 to excellent."
                              III.  EXCEPTION
                       A.  Contentions of the Agency
    As its exception the Agency contends that the award is contrary to
 section 7106(a)(2)(A) and (B) of the Statute.  Specifically, the Agency
 argues that to the extent that the Arbitrator's award directs the
 invalidation of the grievant's performance rating, based upon his
 evaluation of the relative importance of job tasks and levels of
 achievement, it interferes with management's rights to assign work and
 direct employees by substituting his judgment regarding performance
 criteria for that of the Agency.  The Agency maintains that, at most,
 the Arbitrator should have merely directed the Agency to reevaluate the
 grievant's performance and not have unilaterally changed it.
                        B.  Opposition of the Union
    In its opposition the Union contends that the Agency waived its
 rights to file exceptions to arbitrators' awards in expedited
 arbitrations and since this grievance was resolved under the expedited
 arbitration procedure it can not do so in this instance.  The Union also
 asserts that the Agency misconstrues the basis for the Arbitrator's
 award.  It maintains that the award was based primarily upon the
 Arbitrator's findings regarding the grievant'sperformance of extra work.
  Consequently, his award is not deficient and is within the purview of 5
 U.S.C. Section 4302, relating to the establishment of performance
 appraisal systems, and the parties' contract.
                       IV.  ANALYSIS AND CONCLUSIONS
    Initially, we confirm that the Agency's exception is properly before
 the Authority for decision.  We have previously addressed and rejected
 the Union's argument that under the parties' collective bargaining
 agreement, exceptions may not be filed to expedited arbitration awards.
 Social Security Administration and American Federation of Government
 Employees, Local 1923, 22 FLRA No. 66 (1986);  Social Security
 Administration and American Federation of Government Employees, AFL-CIO,
 16 FLRA 552 (1984).
    In recent decisions we have discussed in detail the role of an
 arbitrator in resolving disputes pertaining to performance appraisal
 matters.  Federal Prison System, U.S. Medical Center for Federal
 Prisoners and American Federation of Government Employees, Local 1612,
 23 FLRA No. 53 (1986);  Mare Island Naval Shipyard and International
 Federation of Professional and Technical Engineers, Local 11,
 AFL-CIO-CLC, 23 FLRA No. 32 (1986);  Veterans Administration Hospital,
 Bath, New York and American Federation of Government Employees, Local
 491, 22 FLRA No. 103 (1986) (and cases cited in the decision).  We found
 that an arbitrator may resolve grievances over whether an employee was
 adversely affected in his or her performance appraisal by management's
 application of the established performance standards.  An arbitrator may
 sustain the grievance on finding that management had not applied the
 standards which it established to the grievant or had applied the
 standards in violation of law, regulation, or an appropriate provision
 of the parties' collective bargaining agreement.  In sustaining the
 grievance, the arbitrator may direct that the grievant's work product be
 properly evaluated.  An arbitrator may not, however, substitute his or
 her own judgment for that of management in the exercise of the rights
 under section 7106(a)(2)(A) and (B) to direct employees and assign work
 as such rights pertain to matters of performance appraisal.  In
 particular, an arbitrator may not substitute his or her own judgment for
 that of management as to what the grievant's evaluation and rating
 should be.  We have also held that section 7106(a)(2)(A) and (B)
 encompasses the right to determine the methods to be used in evaluating
 employee work performance.  American Federation of Government Employees,
 Local 1760, AFL-CIO and Department of Health and Human Services, Social
 Security Administration, 23 FLRA No. 21 (1986) (proposals 2-6).
    Applying these principles to this case, we conclude in agreement with
 the Agency that the Arbitrator improperly substituted his own judgment
 for that of management in the exercise of the rights under section
 7106(a)(2)(A) and (B) to direct employees and assign work.  The
 Arbitrator conducted an independent evaluation of the grievant's
 performance under the elements and standards established by management
 and substituted his judgment for that of management as to what that
 employee's evaluation and rating should have been.  In directing that
 the grievant's overall rating be raised to level 3, the Arbitrator did
 not merely grant the grievant's work product as appraised by management
 the rating to which it was entitled under the established standards.
 Instead, the Arbitrator rejected management's appraisals and substituted
 his judgment for that of management as to what constituted the proper
 application and weight to be given various job elements, including what
 constituted the performance of extra work as contemplated under GJT 1.
                               V.  DECISION
    For these reasons, we find that the Arbitrator's direction that the
 Agency change its appraisal of grievant's performance on GTR 1 from
 level 2 to level 3 and to change her summary appraisal from fully
 satisfactory to excellent is contrary to section 7106(a) of the Statute
 and must be modified.  Accordingly, the award is modified to provide, as
          The grievance is sustained.  The Agency is directed to
       reevaluate in accordance with the parties' collective bargaining
       agreement the grievant's performance on GTR 1 for the appraisal
       period in dispute.
    Issued, Washington, D.C., February 4, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY