[ v26 p375 ]
The decision of the Authority follows:
26 FLRA No. 46 VETERANS ADMINISTRATION MEDICAL CENTER, LEAVENWORTH, KANSAS Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 85 Union Case No. 0-AR-1283 DECISION 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/ II. BACKGROUND AND ARBITRATOR'S AWARD 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 evaluation. 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. 1982). 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.