46:1107(99)AR - - HHS, Adm. for Children and Families and NTEU, NTEU Chapter 250 - - 1993 FLRAdec AR - - v46 p1107



[ v46 p1107 ]
46:1107(99)AR
The decision of the Authority follows:


46 FLRA No. 99

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

ADMINISTRATION FOR CHILDREN AND FAMILIES

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

NTEU CHAPTER 250

(Union)

0-AR-2310

_____

DECISION

January 7, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Robert O. Harris 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. The Union filed an opposition to the exceptions.

In resolving a grievance challenging the grievant's performance appraisal, the Arbitrator ordered the appraisal rating raised to "excellent." For the following reasons, we conclude that the award is deficient, in part, and must be remanded to the parties for resubmission to the Arbitrator for clarification.

II. Background and Arbitrator's Award

The grievant, a GS-12 Program Analyst, was rated by her immediate supervisor at level 4 ("excellent") in job element number 1 ("Performs Analysis as Assigned") for the 1990 appraisal year. An additional narrative for job element number 1, prepared by the grievant's second-level supervisor, was attached to the appraisal. That narrative provided as follows:

From my observation, she has met level three requirements but has not yet treated issues in depth nor developed useful trend analysis without supervisory help. She needs to improve on considering and weighing options and presenting recommendations.

Award at 5. The second-level supervisor reduced the rating on this element from level 4 to level 3 (fully satisfactory).

The grievant filed a grievance alleging that the rating should not have been lowered. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue before him as follows:

Should grievant have received an "excellent" rather than a rating of "fully satisfactory" on a critical element of her performance plan for the rating period . . . ?

Id. at 2.

The Arbitrator noted the grievant's testimony that her performance plans for 1989 and 1990 contained a job element which encompassed, among other things, trend analysis, and that she had not been informed that there were different expectations of her in 1990 than there had been in 1989. The Arbitrator also noted that the grievant had not been asked to perform a trend analysis prior to the 1990 appraisal year. The Arbitrator credited the testimony of the grievant's immediate supervisor that he helped the grievant with trend analysis in 1990 and that this help was "on the job training." Id. at 7. The Arbitrator pointed out that the grievant had been rated "excellent" on the disputed job element in 1989 without performing a trend analysis, and that the grievant's immediate supervisor rated the grievant as "excellent" on the element for the 1990 appraisal period. In this regard, the grievant's second-level supervisor testified that he lowered the rating only after his supervisor (the grievant's third-level supervisor) told him that the performance ratings in the grievant's division were too lenient.

The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement, Agency Employee Performance Management System (EPMS) guidelines, and Health and Human Services (HHS) Instructions by failing to provide the grievant with a timely progress review. The Arbitrator also concluded that these regulations require employees' immediate supervisors to prepare ratings and that second-level supervisors were responsible only for approval, "and, tacitly," disapproval of ratings. Award at 16. The Arbitrator found that reviewing officials were not authorized under the regulations to appraise employees.

The Arbitrator concluded that the second-level supervisor "wrongfully changed" the grievant's rating on job element number 1 and that "but for the influence of" the third-level supervisor on the second-level supervisor, the grievant's rating would not have been changed. Id. at 17-18.

The Arbitrator concluded, citing Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I), that he had sufficient information to "make the appraisal." Award at 18. In this regard, the Arbitrator stated that "[i]f the trend analysis assignment is excluded from [the] grievant's appraisal, it is clear that her performance was at least as good in 1990 as it had been in 1989." Id. The Arbitrator concluded that, in view of the grievant's inexperience in this work and the Agency's inability to provide formal training due to budgetary constraints, the grievant's ability to perform trend analysis should not have been judged until her on-the-job training was completed. The Arbitrator found that such training was completed after the 1990 appraisal period. The Arbitrator stated that, as the grievant did not receive a timely progress review, "even if she had completed her on-the-job training, she would not have been able to correct any deficiencies that might have been noted in her performance." Id. at 19.

The Arbitrator concluded that the grievant "should have received a '4' on job element number 1 in the rating which was originally given her by [the immediate supervisor]." Id. Accordingly, as his award, the Arbitrator sustained the grievance and directed the Agency to provide the grievant a rating of 4 on job element number 1.

III. Exceptions

The Agency argues, based on the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (SSA II), that the Arbitrator improperly cancelled the grievant's performance rating. In this connection, the Agency claims that the Arbitrator's award is based on his erroneous findings that the grievant's rating "could not be changed by a reviewing official[,]" and that the Agency failed to provide the grievant with a progress review mid-way through the appraisal period as required by the parties' collective bargaining agreement. Exceptions at 15. According to the Agency, EPMS guideline section IV.B(1) and HHS Instruction 430-4-40E(2) specify that reviewing officials may change an employee's rating "as long [as] that change is documented." Id. at 17.

The Agency also contends that the Arbitrator "misread[]" Article 13, Section 9 of the parties' collective bargaining agreement.(3) Exceptions at 20. According to the Agency, the parties' agreement mandates a progress review mid-way through the performance period only "if that performance period lasts a full twelve months." Id. In instances where the performance period is less than 12 months, the Agency argues that the agreement states only that there "should" be a progress review mid-way through the performance period. Id.

The Agency also argues that the award is deficient because the Arbitrator improperly raised the grievant's rating. In this connection, the Agency maintains that the Arbitrator altered the content of one of the grievant's established performance standards by excluding the grievant's trend analysis assignment from the appraisal process. The Agency also maintains that the Arbitrator failed to apply the established standards and relied instead on the grievant's 1989 performance appraisal to rate the grievant's performance in 1990.

IV. Opposition

The Union contends that the award is consistent with the Authority's decisions in SSA I and II. The Union asserts that the Agency is simply disagreeing with the Arbitrator's award. The Union also argues that the award draws its essence from, and is an appropriate interpretation of, the parties' agreement.

V. Analysis and Conclusions

A. Agency Regulations

According to the Agency, the Arbitrator erroneously interpreted Agency regulations as precluding a reviewing official from changing an employee's rating. We construe this argument as a contention that the award is contrary to Agency regulations.

The Arbitrator found that, under the disputed regulations, a reviewing official could approve or disapprove ratings prepared by an appraising official, but could not actually appraise an employee. Contrary to the Agency's argument, nothing in the regulations relied on by the Agency provides to the contrary. Accordingly, we conclude that the Agency's argument is an attempt to relitigate the merits of the grievance before the Authority and constitutes mere disagreement with the Arbitrator's findings. As such, this exception provides no basis for finding the award deficient. Id. at 1104.

B. Essence of the Parties' Agreement

We construe the Agency's assertion that the Arbitrator misread the parties' agreement as a contention that the award fails to draw its essence from the agreement.

To demonstrate that an award is deficient because it fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the Arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992) (Tinker).

The Arbitrator determined, based on his interpretation of Article 13, Section 9(B) of the parties' agreement, that the Agency violated that provision when it conducted the grievant's progress review in the fifth month of a 6-month appraisal period. Nothing in the Arbitrator's interpretation of the agreement is irrational, unfounded, implausible, or in manifest disregard of the agreement. In our view, the Agency's argument constitutes mere disagreement with the Arbitrator's interpretation of the agreement and, as such, does not demonstrate that the award fails to draw its essence from the agreement. For example, Tinker, 44 FLRA at 286.

C. Cancellation of Grievant's Rating

In SSA I, the Authority reexamined the remedial authority of Arbitrators in performance appraisal matters. In SSA II, the Authority described SSA I as "establish[ing] a two-prong test":

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.

SSA II, 34 FLRA at 328.

As to the first prong, the Arbitrator here found that the Agency applied the grievant's performance standards in violation of the parties' collective bargaining agreement and relevant Agency regulations. We have denied the Agency's exceptions to these arbitral findings. Accordingly, we conclude that the Arbitrator properly cancelled the grievant's "fully successful" performance rating for the disputed job element.

D. Determination of Grievant's Rating

Under SSA II, an arbitrator may not raise a performance rating unless the arbitrator is able to determine, from the record, what the employee's performance rating would have been if the relevant violation of law, regulation, or collective bargaining agreement had not occurred. If an arbitrator is unable to make such determination, the matter should be remanded to the agency for reevaluation of the grievant.

Here, the Arbitrator stated that he had "sufficient information to make the appraisal." Award at 18. In his subsequent discussion of this matter, the Arbitrator stated that the trend analysis performed by the grievant during the 1990 appraisal year should be excluded from her 1990 appraisal. In addition, the Arbitrator stated that, as the grievant did not receive a timely progress review, she would not have been able to correct any deficiencies in her trend analysis even if that analysis properly were included in the appraisal. Based on these two statements, the Arbitrator concluded that the grievant should have received the rating initially granted her by her first-level supervisor.(4)

We conclude that the Arbitrator improperly altered the content of an established performance standard by excluding the grievant's performance of trend analysis from her appraisal. By excluding such analysis, the Arbitrator "determined what the grievant's rating would have been under standards different from those established" by the Agency. SSA I, 30 FLRA at 1163. As such, this portion of the award is deficient as contrary to management's rights to direct employees and assign work under section 7106(a) of the Statute. Id.

Although the Arbitrator also discussed the Agency's improper failure to provide the grievant with a