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The decision of the Authority follows:
35 FLRA No. 99
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 30, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator William A. Dawson. A grievance was filed disputing the grievant's performance ratings of level 2 for three job tasks. The Arbitrator sustained the grievance, requesting that the grievant's ratings be changed to level 3 for the three tasks.
The Agency filed an exception under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.
For the following reasons, we conclude that the award is inconsistent with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and, therefore, is deficient under section 7122(a). Accordingly, we will set aside the award.
II. Background and Arbitrator's Award
The Arbitrator did not specify the issue before him in this case. Consistent with statements in the Agency's exception and attachments to the Union's opposition, however, the grievance concerned the grievant's performance ratings of level 2 in Generic Job Task (GJT) Nos. 12, 13, and 54. Exception at 2; Attachment 1B to Union's Opposition. The grievant requested that the ratings in those GJTs be raised to level 3. Id. The grievance was submitted to arbitration.
The Arbitrator stated first that the grievant could be rated only on the basis of current performance and that he was "not in a position to observe the performance of the grievant, and would not be competent to rate it were he to do so." Award at 1. The Arbitrator also stated that an evaluation which is lower than a previous one "must be scrutinized more closely because of the risk of negative consequences from a record of a decline in performance." Id. The Arbitrator concluded as follows:
In the case of [the grievant], it seems to me that there were too many supervisors involved, too many changes of assignment, and too much confusion as to who was responsible for evaluation for a totally reliable evaluation to be made. It may well have been correct, but too many doubts have been raised.
Further, the grievant should not have to bear the burden of a retrograde evaluation in the given situation where the bulk of her work was of a simple and routine character that could not be expected to rise to the level of exemplary. The future implication of a decline in performance should not stay in the record.
For these reasons the grievance is sustained.
III. Positions of the Parties
A. The Agency's Exception
The Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency states that under the Authority's decision in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (Social Security Administration I), an arbitrator may direct an agency to grant a grievant a particular performance rating only when the arbitrator is able to determine based on the record what a grievant's performance rating would have been if management had not violated law, regulation, or the parties' collective bargaining agreement. The Agency asserts that the Arbitrator found no violations of law, regulation, or the collective bargaining agreement in this case. The Agency asserts further that, even assuming that the Agency violated law, regulation, or the parties' contract, the Arbitrator did not determine what the grievant's rating would have been in the absence of the violation. Accordingly, the Agency maintains that the award is deficient and should be set aside.
B. The Union's Opposition
The Union asserts first that by agreeing to submit the dispute to expedited arbitration under Article 25, Section 7 of the parties's agreement, the Agency "waived its statutory right to file exceptions to the resulting decision." Opposition at 1. The Union asserts also that the Agency has not demonstrated that the award violates section 7106(a)(2)(A) and (B) of the Statute. According to the Union, the Arbitrator was aware of the Authority's decision in Social Security Administration I and issued his award based on, and consistent with, that decision.
IV. Analysis and Conclusions
A. The Agency Did Not Waive Its Right To File Exceptions
The Union's assertion that the Agency waived its right to file exceptions to the Arbitrator's award by agreeing that the dispute would be submitted to expedited arbitration under Article 25, Section 7 of the parties' agreement has previously been considered and rejected by the Authority. See, for example, Social Security Administration and American Federation of Government Employees, AFL-CIO, 31 FLRA 1277 (1988) (Social Security Administration II). The Authority noted, among other things, that Article 25, Section 7 does not address the filing of exceptions and concluded that the provision does not constitute a clear and unmistakable waiver of the Agency's right to file exceptions under section 7122(a) of the Statute. Id. at 1279. We find no basis on which to reach a different conclusion in this case. Accordingly, we will resolve the Agency's exceptions.
B. The Award Is Deficient
In Social Security Administration I, the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. Subsequently, in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990) (Social Security Administration III), we described Social Security Administration I as "establish[ing] a two-prong test." We explained the test as follows:
First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order management to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.
In this case, the Arbitrator did not find that the Agency violated law, regulation, or a provision of the parties' collective bargaining agreement in appraising the grievant. In fact, the Arbitrator expressly acknowledged that the grievant's appraisal "may well have been correct[.]" Award at 1. Compare Social Security Administration III (Authority remanded award to the parties to seek clarification from arbitrator because award was ambiguous as to whether the agency had violated the parties' contract in appraising the grievant).
As the Arbitrator did not find a violation of law, regulation, or contract, the Arbitrator was not authorized to cancel the grievant's ratings on the three disputed GJTs. Consequently, by sustaining the grievance and effectively directing the Agency to raise the grievant's ratings for the GJTs, the award is contrary to management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. See Social Security Administration II. In addition, because the Arbitrator did not find a violation of law, regulation, or contract, we have no basis on which to modify the award to require that the grievant be reevaluated. Compare U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 237 (1990) (as it was clear that first prong of the Social Security Administration I test was satisfied, the Authority modified the award to require that the grievant be reevaluated). Accordingly, we will set aside the award.
The Arbitrator's award is set aside.
(If blank, the decision does not have footnotes.)