25:0725(59)AR - Health Care Financing Administration and AFGE Local 1923 -- 1987 FLRAdec AR

 25 FLRA No. 59
 
 HEALTH CARE FINANCING ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1923
 Union
 
                                            Case No. O-AR-1211
 
                                 DECISION
    I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Ira F. Jaffe 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.  /*/
 
    II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    Grievances were filed and submitted to arbitration protesting the
 1985 performance appraisals of the grievants, two secretaries, and
 seeking that the overall ratings of "excellent" be raised to
 "outstanding," the highest level of performance.  The Arbitrator
 determined that in several respects the grievants' appraisals were not
 in accordance with the established performance standards, the grievants'
 job performance plans, and the parties' collective bargaining agreement.
  Consequently, the Arbitrator sustained the grievances and as his award
 directed the Agency "to change the Grievants' 1985 performance
 evaluations to reflect level 4 performance on each of the four job
 elements and to reflect an overall rating of 'outstanding.'"
 
    III.  EXCEPTION
 
    The Agency contends that the award is contrary to section
 7106(a)(2)(A) and (B) of the Statute.  Specifically, the Agency asserts
 that the Arbitrator substituted his own assessment of the grievants' job
 performance and his own evaluation of the grievants' performance ratings
 for those of management.
 
    IV.  ANALYSIS AND CONCLUSIONS
 
    In recent decisions we have discussed the role of an arbitrator in
 resolving disputes pertaining to performance appraisal matters.  Social
 Security Administration and American Federation of Government Employees,
 Local Union 1923, 25 FLRA No. 37 (1987);  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).  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.
 
    Applying these principles to this case, we conclude in agreement with
 the Agency that the Arbitrator improperly substituted his own judgment
 for that of managemnet in the exercise of the rights under section
 7106(a)(2)(A) and (B) to direct employees and assign work.  In directing
 that the grievants' overall ratings be raised to "outstanding," the
 Arbitrator did not merely grant the grievants' work products as
 appraised by management the ratings to which they are entitled under the
 established standards.  Instead, the Arbitrator rejected management's
 appraisals.  The Arbitrator conducted an independent evaluation of the
 grievants' performance under the elements and standards established by
 management and substituted his judgment for that of management as to
 what the grievants' evaluations and ratings should have been.
 
    V.  DECISION
 
    For these reasons, we find the Arbitrator's direction that the Agency
 change the grievants' performance evaluations to reflect level 4
 performance on all elements and an overall rating of "outstanding" is
 contrary to section 7106(a) of the Statute.  Accordingly, the award is
 modified to provide, as follows.
 
          The grievances are sustained.  The Agency is directed to
       reevaluate the grievants' performances in accordance with the
       established performance standards and the parties' collective
       bargaining agreement for the appraisal period in dispute.
 
    Issued, Washington, D.C., February 13, 1987.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) As part of its opposition, the Union contends that the Agency's
 exception should be dismissed because under the parties' collective
 bargaining agreement, exceptions assertedly cannot be filed to
 arbitration awards, such as the award in this case, issued under the
 expedited arbitration procedures.  However, we have previously rejected
 this argument, and we confirm that this matter is properly before us for
 decision.  Social Security Administration and American Federation of
 Government Employees, Local Union 1923, 25 FLRA No. 37 (1987);  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).