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U.S. Federal Labor Relations Authority

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26:0375(46)AR - VA Medical Center, Leavenworth, Kans., and AFGE, Local 85 -- 1987 FLRAdec AR

[ v26 p375 ]
The decision of the Authority follows:

 26 FLRA No. 46
                                            Case No. 0-AR-1283
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on exceptions to the award of
 Arbitrator Charles E. Clark 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.  /1/
    A grievance was filed concerning the performance evaluation of the
 grievant, a food service worker in the Agency's Dietetic Service, who
 received a satisfactory rating.  During the rating period in question,
 the grievant worked under three supervisors and under two different
 performance plans.  The grievant sought a rating of highly satisfactory
 on her evaluation asserting, in part, that she had not received the
 required performance plan.  To resolve the grievance, the grievant's
 most recent supervisor was directed to reevaluate the grievant taking
 into account the performance plan.  Again, the grievant was given a
 satisfactory rating.  Another grievance was filed which was submitted to
 arbitration and which is before us now on exceptions to the award.  The
 issue submitted to arbitration was whether the master labor agreement
 had been violated by the Agency in evaluating the grievant and, if so,
 what the remedy should be.
    The Arbitrator determined that the Agency violated the agreement in
 evaluating the grievant.  More particularly the Arbitrator found that
 the Agency had violated its own Policy Memorandum, MCPM 05-22.  This, in
 turn, was found to constitute a violation of the parties' master
 agreement which provides that employee job performance is to be
 evaluated on a basis that is "fair, reasonable, equitable and
 job-related." The Arbitrator found an additional violation of the master
 agreement concerning "Official Records" and the use and dissemination of
 supervisory notes kept on employees.
    In fashioning a remedy, the Arbitrator noted that there was
 insufficient evidence concerning the grievant's performance under two of
 the supervisors upon which to evaluate her performance during the entire
 rating period.  The Arbitrator found inapplicable a portion of the
 master agreement which would have allowed for a carry over of a rating
 from a previous rating period for employees in certain circumstances.
 The Arbitrator then concluded that he could not reevaluate the
 grievant's performance.  Rather, he concluded that the sole feasible
 remedy was to provide that future performance evaluations be consistent
 with the master agreement.  Therefore, as a remedy, the Arbitrator
 ordered the Agency to add various "procedures" for rating employee
 performance to MCPM 05-22.  Essentially, the "procedures" concerned the
 preparation of complete appraisals by supervisors who supervise
 employees for periods of less than 12 months during the rating period,
 as occurred in this case;  the weighting of such appraisals according to
 the number of months supervised by each rating supervisor;  and the
 averaging of such evaluations to arrive at the final performance
    The Arbitrator also directed that the Agency meet and confer with the
 Union concerning various aspects of performance standards for all jobs
 in the Dietetic Service, including job analysis and identification of
 critical elements and other key responsibilities, and the manner and
 means of rating employees.  Finally, the Arbitrator ordered the Agency
 to train supervisors in various matters, including (1) all aspects of
 their duties and responsibilities under the provision of the parties'
 agreement pertaining to the maintenance of records;  (2) modifications
 to the written performance standards, following consideration of the
 Union's views and recommendations;  and (3) other matters related to the
 employee evaluation process.
                         III.  AGENCY'S EXCEPTIONS
    The Agency principally contends that the Arbitrator's award is
 contrary to section 7106(a)(2)(A) and (B) of the Statute.  We agree.
                       IV.  ANALYSIS AND CONCLUSIONS
    The Authority has repeatedly recognized that the plain language of
 section 7106 provides that "nothing" in the Statute shall "affect the
 authority" of an agency to exercise the rights enumerated in that
 section.  American Federation of Government Employees, AFL-CIO, Local
 1968 and Department of Transportation, Saint Lawrence Seaway Development
 Corporation, Massena, New York, 5 FLRA 70, 79 (1981), aff'd sub nom.
 AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied,
 461 U.S. 926 (1983).  Therefore, the Authority has consistently held
 that an arbitration award may not interpret or enforce a collective
 bargaining agreement so as to improperly deny an agency the authority to
 exercise its rights under section 7106 or result in the substitution of
 the arbitrator's judgment for that of the agency in the exercise of
 those rights.  U.S. Customs Service, Laredo, Texas and Chapter 145,
 National Treasury Employees Union, 17 FLRA 68 (1985);  American
 Federation of Government Employees, Local 3258 and U.S. Department of
 Housing and Urban Development, 21 FLRA No. 56, slip op. at 4 (1986).
 Section 7106(a)(2)(A) and (B) of the Statute reserves to agency
 management the right to direct employees and assign work, including the
 right to determine the methods to be used in evaluating employee work
 performance.  See 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).
    In this case, by ordering the Agency to add various requirements to
 an existing Agency performance evaluation policy, including the weights
 to be accorded to supervisory appraisals and the manner in which final
 employee performance ratings are to be reached, the Arbitrator
 prescribed the method to be used by the Agency in evaluating employee
 work performance.  The award is therefore contrary to section
 7106(a)(2)(A) and (B) of the Statute in that respect.  See also Federal
 Prison System, U.S. Medical Center for Medical Prisoners and American
 Federation of Government Employees, Local 1612, 23 FLRA No. 53 (1986).
 Moreover, to the extent that the award directs the Agency to bargain
 with the Union concerning performance elements and standards for
 employees, that part of the award is also contrary to section
 7106(a)(2)(A) and (B).  National Treasury Employees Union and Department
 of the Treasury, Bureau of Public Dept., 3 FLRA 769 (1980), aff'd sub
 nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir.
    The award is also deficient because it would require the Agency to
 assign work to supervisors.  The Authority has consistently found that
 union proposals which prescribe specific duties to be performed by
 particular non-bargaining unit personnel in an agency are outside the
 duty to bargain since they would interfere with management's right to
 assign work under section 7106(a)(2)(B) of the Statute.  See generally
 The Department of Health and Human Services, Social Security
 Administration, Kansas City, Missouri, 17 FLRA 561 (1985).  The
 Authority has previously held that training is part of the assignment of
 work.  See, for example, AFGE Local 1760 and Social Security
 Administration, 23 FLRA No. 21 (proposal 8).  Therefore, that part of
 the award which directs training for supervisors concerns the
 assignement of work and is inconsistent with section 7106(a)(2)(B) of
 the Statute.
    As to any remedy to which the grievant might be entitled because of
 the Agency's violation of its own policy memorandum and the parties'
 collective bargaining agreement, the Arbitrator properly found that he
 could not reevaluate the grievant.  In cases involving disputes over
 performance appraisal matters, we have held that an arbitrator may not
 substitute his or her own judgment for that of management as to what a
 grievant's evaluation should be.  However, it is entirely appropriate
 for an arbitrator to direct that a grievant's work product be properly
 evaluated.  See Health Care Financing Administration and American
 Federation of Government Employees, Local 1923, 25 FLRA No. 59 (1987)
 and cases cited therein.  It is equally appropriate that the grievant's
 performance be reevaluated in this case since the Arbitrator found that
 the Agency had violated its own policy on performance evaluations and
 the master agreement in evaluating the grievant.
                             V.  DECISION /2/
    For the reasons set forth above, the award is modified to provide the
 following remedy in place of that directed by the Arbitrator:
          The Agency is directed to reevaluate the grievant's performance
       in accordance with the established performance appraisal policy
       and the parties' master collective bargaining agreement for the
       appraisal period in question.
    Issued, Washington, D.C., March 25, 1987
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) The Union requested that the Authority dismiss the exceptions as
 having been untimely filed.  However, we have determined that the
 exceptions were timely filed under sections 2425.1, 2429.21 and 2429.22
 of the Authority's Rules and Regulations.
    (2) In view of this decision, we find it unnecessary to address other
 contentions made by the Agency in its exceptions.