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The decision of the Authority follows:
28 FLRA NO. 83
WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 987 Union Case No. 0-AR-1290
This matter is before the Authority on an exception to the award of Arbitrator Roger C. Williams filed by the Agency under section 7122(a) of the Federal Sector Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.
The grievance in this case concerns the performance rating of the grievant for his job element 5E, pertaining to time and attendance, for the rating period ending January 31, 1985. Subelement A of element 5E establishes a standard of 3-5 instances of tardiness during the rating period. Subelement B apparently establishes a standard of sick leave usage in 1-3 day increments, excluding major illnesses, of between 3-1/2 to 4 percent of available hours. 2 The grievant's supervisor rated him as not meeting the standard for both subelements stating in the grievant's appraisal that the grievant had been tardy more than 5 times during the rating period and that the grievant's use of sick leave of 1-3 day increments during the rating period had exceeded 4 percent of available hours. Accordingly, the grievant was rated as "did not meet" for element 5E and, because the element was noncritical, the grievant as a result received an overall performance rating of "minimally acceptable." The grievant filed a grievance that was submitted to arbitration contending that the rating of "did not meet" for both subelements was incorrect because his actual performance under both subelements met the established standard.
The Arbitrator concluded that the evidence and testimony "prove(d) that (the grievant) was not tardy more than 5 times during the appraisal period." The Arbitrator noted in particular that although the grievant's supervisor testified that the grievant was tardy "8 or 9 times," the supervisor had no records to substantiate any tardiness of the grievant. On this basis the Arbitrator determined that the established standard had been incorrectly applied to the grievant and that under the established standard, the grievant's performance met the standard. The Arbitrator also determined that the grievant's supervisor had miscalculated the percentage of available hours during the rating period the grievant's 48 hours of sick leave represented. The Arbitrator ruled that accurately calculated under the method applied by the grievant's supervisor, the grievant's sick leave was less than 4 percent of available hours. Consequently, the Arbitrator ruled that the grievant's performance met the established standard and that the grievant's supervisor would have rated the grievant as having met the standard if he had calculated the percentage correctly. Accordingly, the Arbitrator determined that the grievant had met the established standards for job element 5E and that he had been incorrectly evaluated as having not met the standards. As his award, the Arbitrator directed that the grievant's rating be changed to "met" and that because the grievant had met the standard for all his job elements, his overall performance rating be changed to "fully successful."
The Agency contends that the award is contrary to management rights under section 7106(a)(2)(A) and (B) of the Statute. The Agency maintains that the award is deficient because instead of directing management to reevaluate the grievant's performance under the disputed element, the Arbitrator improperly directed that the grievant's performance rating be changed from "did not meet" to "met."
We conclude that the Agency has failed to establish that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. In many decisions we have discussed in detail the role of an arbitrator in resolving disputes pertaining to performance appraisal matters. See, for example, General Services Administration, Region 10 and American Federation of Government Employees, Council 236, 22 FLRA No. 8 (1986). We have found that an arbitrator may resolve a grievance over whether an employee was adversely affected in his or her performance appraisal by management's application of the established performance standards. The arbitrator may sustain the grievance on finding that management had not properly applied to the grievant the standards which it has established. In sustaining the grievance, the arbitrator may direct when appropriate that the grievant's work product or performance be granted the rating to which entitled under the established elements and standards. As to when such a direction would be appropriate, we have indicated that the disputed appraisal and elements and standards should be of the type that permits the arbitrator "in an objective, nondiscretionary, and essentially mechanistic manner to determine without an independent evaluation that the aggrieved employee was entitled to a different rating under the established standards." GSA, Region 10, 22 FLRA No. 8 at 5; Social Security Administration, Office of Hearings and Appeals, Region II and American Federation of Government Employees, Local 1760, 21 FLRA No. 86 (1986) at 6.
We find that the appraisal and the elements and standards in dispute in this case permitted the Arbitrator in an objective, nondiscretionary, and essentially mechanistic manner to determine without an independent evaluation that the grievant Was entitled to ratings of "met" under the established standards for both subelements of the disputed element and consequently a rating of "met" for the element, itself. Based on the evidence and testimony presented, the Arbitrator resolved the objectively verifiable dispute over whether the grievant was tardy more than 5 times during the rating period. once he found that the grievant had not been tardy more than 5 times, the Arbitrator determined without an independent evaluation that the grievant was entitled to a rating of "met" for that subelement. Similarly, he corrected the miscalculation of the grievant's supervisor on what percentage of total available hours the grievant's 48 hours of sick leave represented. Having corrected the miscalculation, the Arbitrator determined without an independent evaluation that the grievant was entitled to a rating of "met" for the subelement and would have received that rating from his supervisor but for the miscalculation.
As we found in Bureau of Prisons, Department of Justice and American Federation of Government Employees, Local 148, 21 FLRA No. 15 (1986), we similarly find in this case that consistent with section 7106(a)(2)(A) and (B) and with Authority precedent, the award has "simply and appropriately applied to the grievant the performance standards established by management." Slip op. at 6-7. In short, as in Bureau of Prisons, the grievance and the award properly relate only to the application of management's performance standards to the grievant. The award has not resulted in an independent evaluation of the grievant's performance under the elements and standards established by management and has not resulted in a substitution of judgment by the Arbitrator for that of management as to what the grievant's evaluation and rating should be. See Bureau of Prisons at 7. Accordingly, no basis is provided for finding the award deficient as alleged.
The Agency's exception is denied.
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member McKee, concurring in the result
I concur with the conclusion of the majority that the Agency has failed to establish that the Arbitrator's award is contrary to section 7106(a)(2)(A) and (B) of the Statute. Therefore, I also join in the result that the Agency's exceptions must be denied.
However, I do not agree completely with the majority's reasoning in reaching the result. Specifically, I would expand the discretion of the arbitrator in performance appraisal disputes where the arbitrator determines that management improperly applied established performance standards. In this instance, my colleagues restrict the arbitrator to a remedy only where the performance appraisal and the standards permit the arbitrator
"in an objective, nondiscretionary, and essentially mechanistic manner to determine without an independent evaluation that the aggrieved employee was entitled to a different rating under the established standards."
In my view, an arbitrator should not be so constrained in determining and awarding the rating to which an employee is entitled under a performance standard.
I believe that an arbitrator should have the discretion to determine and award the appropriate rating under any performance standard when it is determined that management improperly applied the standard in an appraisal. The arbitrator should not be limited to situations where the standard is susceptible to an "objective, nondiscretionary, and essentially mechanistic" review and application.
In my opinion, the discretion to fashion a remedy in performance appraisal grievances should be similar to the discretion of the Merit Systems Protection Board (MSPB) and arbitrators in resolving disputes concerning performance-based actions under 5 U.S.C. 4303.
When an Agency has removed or demoted an employee for unacceptable performance, the MSPB or an arbitrator, may examine the employee's elements and standards in the light of statutory requirements and the agency's evaluation of the employee's performance under those elements and standards. Also, the arbitrator may determine whether the agency has established by substantial evidence that the employee's performance was in fact unacceptable in one or more of the elements. See, for example, Callaway v. Department of the Army, 23 M.S.P.R. 592 (1984); Baker v. Defense Logistics Agency, 25 M.S.P.R. 614 (1985); Rogers v. Department of Defense Dependents Schools, Germany Region, No. 86-888 (Fed. Cir. March 3, 1987). Where the agency does not support its conclusions with the requisite substantial evidence, the MSPB or an arbitrator may order the agency to cancel the action and make the grievant whole. See Callaway, supra.
In view of the discretion exercised by the MSPB and arbitrators in these instances, I have concluded that it would be consistent, where cases may be appealed to the Authority under section 7122(a) of the Statute, for arbitrators to have similar discretion in resolving similar disputes. In such a case, management should have to substantiate its conclusion concerning an employee's rating and the arbitrator should have the discretion to determine whether the evidence adequately supports the rating.
If an arbitrator determines that a rating is not adequately supported, the arbitrator should have the discretion to direct the agency to cancel the rating. Under the standard and the evidence presented, the arbitrator should have the discretion to grant the rating to which the grievant is entitled.
I recognize that the position of the majority is based on currently applicable Authority precedent. On the other hand, also well established is that arbitrators have considerable latitude in fashioning remedies in disputes. Veterans Administration Hospital. Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64, 67 (1981), citing United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960).
Of course, an arbitrator's award must not be contrary to law or Government-wide rule or regulation. I do not believe that allowing an arbitrator this discretion is contrary to any law, rule or regulation. Moreover, Federal courts have reviewed and approved the discretion of MSPB and arbitrators in performance-based action cases. In addition, allowing arbitrators such discretion would promote grievance arbitration as an effective means of dispute resolution. This is a benefit Congress clearly recognized in the Statute.
I conclude, in view of the discretion exercised by the MSPB and arbitrators in performance-based actions, that in similar cases, which may be appealed to the Authority under section 7122 (a) of the Statute, it would be most consistent for arbitrators to have similar discretion. Therefore, to the extent that prior Authority decisions would unduly limit the arbitrator's discretion in awarding an aggrieved employee a performance rating, I believe that those decisions should no longer be followed.
Accordingly, I agree with the result reached by my colleagues but I do not reach the result by their analysis.
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Footnote 1 Member McKee filed a separate opinion concurring in the result.
Footnote 2 As quoted by the Arbitrator in his award, the language of the standard, itself, is unclear. However, the record before the Authority, particularly the application of the standard to the grievant, indicates that sick leave usage in the range of 3-1/2 to 4 percent meets the standard.