38:0610(56)AR - - HHS, SSA, Mid-America Program Service Center, Kansas City, MO and AFGE Local 1336 - - 1990 FLRAdec AR - - v38 p610

[ v38 p610 ]
The decision of the Authority follows:

38 FLRA No. 56










LOCAL 1336




November 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator George E. Bardwell. A grievance was filed disputing the grievant's performance ratings for three job tasks. The Arbitrator sustained the grievance and concluded that the grievant's performance should be reevaluated, or, in the absence of supporting data, one of the performance ratings should be raised.

The Agency filed exceptions to the award under section 7122(a) of the Federal Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

For the reasons which follow, we conclude that the portion of the award directing the Agency to raise the grievant's performance rating is deficient. We will deny the Agency's exceptions to the remainder of the award.

II. Background and Arbitrator's Award

A grievance was filed and submitted to arbitration on the following stipulated issue: "Did management properly apply the performance standards in appraising the performance of the grievant in GJT(s)19, 111, and 112 for the appraisal period 10/3/88 through 09/30/89?" Award at 1.

The Arbitrator "answered [the issue] in the negative[,]" concluding that "[m]anagement's partial reliance upon quantitative measures of performance and accuracy without prompt notification" to the grievant was an "arbitrary exercise of management authority." Id. at 2. The Arbitrator stated that expected performance measures were not communicated to the grievant until sometime after her first performance interview in February of 1989. As his award, the Arbitrator ordered the following:

[The] Grievant's work performance is to be reevaluated taking into account quantitative standards of production and accuracy for the period [of] May 1, 1989, through September 30, 1989. In the event supporting data for this period are lacking, one of the three GJT(s), 19, 111, [or,] 112[,] is to be changed from Level 3 to Level 4.


III. The Agency's Exceptions

The Agency contends that the award is deficient because it is contrary to its right to direct employees under section 7106(a)(2)(A) 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) (SSA I), an arbitrator may not direct an agency to reappraise a grievant unless there is a specific finding as to the law, regulation, or contractual provision allegedly violated. The Agency maintains that the Arbitrator "exceeded his authority" by requiring the Agency to reevaluate the grievant without finding that the disputed evaluation violated law, regulation, or the collective bargaining agreement. Id. The Agency also contends that the Arbitrator exceeded his authority "by instructing the Agency to arbitrarily change one rating if supporting data w[ere] lacking." Id. at 5 (emphasis in original).

In addition, the Agency asserts that under the parties' agreement the performance "appraisal cycle is 12 months unless otherwise prescribed by Agency policy." Id. at 4. The Agency contends that, in directing that the grievant's work performance to be reevaluated, the Arbitrator "unilaterally" imposed "an abbreviated [appraisal] period" in violation of the collective bargaining agreement. Id. at 5.

IV. The Union's Opposition

As a preliminary matter, the Union argues that the Agency's exceptions should be dismissed because they were untimely filed.

In addition, the Union maintains that "there are no established quantitative measures" with respect to the grievant's position. Opposition at 2. Instead, the Union contends that "[e]ach manager decides on his or her own what standards should be used." Id. The Union maintains that "[t]he Arbitrator did not exceed his authority [by] asking the Agency to reevaluate" the grievant or "by instructing the Agency to change one rating if supporting data w[ere] lacking." Id. (emphasis in original).

V. Preliminary Matter

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served. 5 U.S.C. § 7122(b) and 5 C.F.R. § 2425.1(b). The date of service is the day the award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If exceptions are filed by mail, 5 days are added to the prescribed filing period. 5 C.F.R. § 2429.22. Furthermore, if the deadline occurs on a weekend or a holiday, the filing deadline becomes the next business day. 5 C.F.R. § 2429.21(a). See U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1395, 34 FLRA 1107, 1110 (1990).

In this case, the Arbitrator's award was served on the parties, by mail, on April 19, 1990. Accordingly, to be timely, exceptions had to be filed with the Authority by close of business on May 23, 1990. The Agency's exceptions were filed (postmarked by the U.S. Postal Service) on May 23, 1990. Therefore, the Agency's exceptions were timely filed.

VI. Analysis and Conclusion

In SSA 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