U.S. Federal Labor Relations Authority

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26:0246(30)AR - AFGE Local 2092 and VA Medical Center, Ann Arbor, MI -- 1987 FLRAdec AR

[ v26 p246 ]
The decision of the Authority follows:

 26 FLRA No. 30
                                            Case No. 0-AR-1237
                         I.  Statement of the Case
    This matter is before the Authority on exceptions to the award of
 Arbitrator David T. Borland and 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.
                  II.  Background and Arbitrator's Award
    The grievance protested the changes made and lower ratings given by a
 second line supervisor after the four grievants had discussed and signed
 their performance appraisals with their immediate supervisor.  According
 to the Arbitrator, in April 1986 each of the four grievants reviewed,
 discussed, indicated that he did not wish to respond, and signed his own
 performance appraisal form.  The performance appraisal forms had been
 completed for each grievant and signed by their first line supervisor on
 that same date.  Thereafter, the forms were reviewed and signed by the
 Chief of the Supply Service during the first week in May 1986.  The
 Chief of the Supply Service made some additional comments on the form
 for each grievant and reduced the rating category for three of the
 grievants by one level.  The one grievant whose rating was not reduced
 also received, attached to his performance appraisal form, a memo from
 the Chief indicating an error in the processing of forms that needed to
 be addressed "to ensure your continued highly satisfactory performance."
 The grievants then received a copy of the form from their first line
    A group grievance was filed, objecting to the changes and the lower
 ratings made by the Chief of the Supply Service after the performance
 appraisal forms had been signed by the employees and their immediate
 supervisor.  The grievance cited violations of the parties' master
 agreement, as well as violations of 5 U.S.C. Section 4302 and 5 C.F.R.
 Section 430.204.  The grievants requested that the additional comments
 and lower ratings by the Chief be rescinded and that the ratings of the
 first line supervisor remain unchanged.
    The grievance was submitted to arbitration.  The parties stipulated
 the issue before the Arbitrator as follows:
          Did the Agency violate the Master Agreement, the Code of
       Federal Regulations, or the Agency's policies and rules, when a
       Service Chief changed or down rated the performance appraisals of
       four employees?  If the answer to that question is in the
       affirmative, what would be the appropriate remedy?
    The Arbitrator found that the controlling document was the Code of
 Federal Regulations and ruled that the Activity violated 5 C.F.R.
 Section 430.204(O) by informing the grievants of their ratings prior to
 approval by a higher level reviewer.  He found that the Chief improperly
 changed or downgraded the performance appraisal of the four employees in
 the circumstances presented and sustained the grievance.  As his award,
 the Arbitrator stated:
          The Performance Appraisals of April, 1986, for the four
       Grievants as determined by their Supervisor and communicated to
       them on April 22, 1986 are to become their sole and official
       performance statuses as of that date for their annual evaluations.
        All references or documents relating to any other final
       evaluation or appraisal for the April 1, 1985 -- March 31, 1986
       period are to be expunged from the records of the Agency and from
       the personnel records of these four employees forthwith.
                             III.  EXCEPTIONS
                              A.  Contentions
    The Agency contends that the award violates management's right to
 assign work under section 7106(a)(2) of the Statute.  Specifically, the
 Agency contends that the Arbitrator improperly substituted his judgment
 for that of management as to what the employees' performance evaluations
 and ratings should be.  The Agency also contends that the award
 precludes the reviewing official, an individual not in the bargaining
 unit, from carrying out the assigned duty of reviewing performance
 appraisals, so as to deprive him of the discretion to change appraisals
 inherent in that duty.
                        B.  Analysis and Conclusion
    We agree with the Agency.  In a number of recent decisions we have
 discussed the role of an arbitrator in resolving disputes related to
 performance appraisal matters.  For example, in Federal Prison System,
 U.S. Medical Center for Federal Prisoners and American Federation of
 Government Employees, 23 FLRA No. 53 (1986), we held that an arbitrator
 may sustain a grievance over the improper application of the performance
 appraisal system by management and as a remedy may direct that the
 grievant's work product be reevaluated.  However, the arbitrator may not
 substitute his or her judgment for that of management as to what the
 grievant's evaluation and rating should be.  It has also been
 established that an arbitrator may not render an award in performance
 appraisal cases which precludes a reviewing official, an individual not
 in the bargaining unit, from carrying out the assigned duty to review
 and, if necessary, change performance appraisals.  American Federation
 of Government Employees, Local 1509, Sioux Falls, South Dakota Veterans
 Hospital and U.S. Veterans Administration Hospital, Sioux Falls, South
 Dakota, 23 FLRA No. 4 (1986).
    Applying these principles in this case, we find that the Arbitrator's
 award directing that the appraisals given the grievants by the first
 line supervisor be restored is deficient.  First, the Arbitrator has
 substituted his judgment for that of the reviewing official as to what
 the final rating of the grievants should be.  Second, by changing the
 ratings, the Arbitrator has precluded the reviewing official from
 carrying out the assigned duty of reviewing performance appraisals,
 including the inherent power to change those appraisals if necessary.
 Consequently the award is deficient as contrary to section 7106(a)(2)(A)
 and (B) of the Statute and must be modified.
                               IV.  Decision
    The Arbitrator's award is modified to read as follows:
          Management shall reevaluate the grievant's performance for the
       period in question in accordance with the established performance
       appraisal system and the applicable provisions of the Code of
       Federal Regulations, including 5 C.F.R. Section 430.204(O).
    Issued, Washington, D.C., March 17, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY