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48:0406(38)AR - - HHS, SSA, Baltimore, MD and AFGE, Local 1923 - - 1993 FLRAdec AR - - v48 p406

[ v48 p406 ]
The decision of the Authority follows:

48 FLRA No. 38















August 31, 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 Earle William Hockenberry filed by the Union 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 Agency did not file an opposition to the Union's exceptions.

The Arbitrator sustained, in part, the grievance of an employee contesting the ratings she received in two elements of her performance appraisal and ordered that the Agency reevaluate the grievant's performance. The Union excepts only to the part of the award ordering reevaluation. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a GS-11 Disability Examiner, received a performance appraisal in which, as relevant here, she was rated as performing at "level 4" in two Generic Job Tasks (GJTs), with an overall rating of "excellent."(*) The grievant asserted that the disputed ratings should be changed to "level 5" and that her overall rating should be raised to "outstanding." The grievance was not resolved and was submitted to arbitration on the following stipulated issue:

Was the [g]rievant, . . . , properly evaluated in GJT 5 and GJT 40? If not, should the designation "N" be used for such GJT's?

Award at 2.

The Arbitrator found that the grievant's supervisor "did not write [the grievant's performance appraisal] with levels in mind. . . . [and] did not show any comparison of actual work, [during grievant's review, instead] choosing to motivate her employees with positive statements." Id. at 3. The Arbitrator also found that the evaluation contained "no further explanation of the rating nor . . . a comparison of examples of actual work performed with the performance standard." Id. at 4. The Arbitrator concluded that the Agency failed to comply with the Agency's Personnel Manual, which, he found, requires that an employee's rating be explained and that an appraisal include a comparison of actual work performed with the performance standard. The Arbitrator stated:

[t]his failure on the part of the supervisor to follow the Personnel Manual is sufficient . . . to constitute procedural error and require that the evaluative process, as to [the] two disputed GJTs, be rerun with modifications to the [g]rievant's rating as may be appropriate. The [Arbitrator] i[s] not persuaded . . . that the appropriate action is to void the level [4] granted, . . . .

Id. at 4. As his award, the Arbitrator directed the Agency to reevaluate the grievant's performance in the two disputed GJTs.

III. Exceptions

The Union "objects to the Arbitrator's direction [that the Agency] reevaluate[]" the grievant's performance. Exceptions at 4. The Union acknowledges that, 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) (SSA II), the Authority affirmed arbitral authority to require agencies to reevaluate employee performance. However, the Union argues that application of SSA II is not feasible in this case because "there was no record upon which to base the initial evaluation, and there is no record upon which to perform a reevaluation." Id. at 5. The Union requests the Authority to reconsider the application of SSA II and "its limitation on an Arbitrator in cases such as this." Id. at 7.

IV. Analysis and Conclusions

In SSA II the Authority set forth the following two-prong test concerning the remedial authority of arbitrators in performance appraisal cases:

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.

U.S. Department of Health and Human Services, Social Security Administration, Boston Region, Office of Program Integrity and Review and American Federation of Government Employees, Local 3760, 46 FLRA 1147, 1150 (1993) quoting SSA II, 34 FLRA at 328.

It is clear and undisputed that, as the Arbitrator found that the Agency failed to comply with various provisions in its Personnel Manual, the Arbitrator properly cancelled the grievant's contested ratings. See U.S. Department of Health and Human Services, Administration for Children and Families and National Treasury Employees Union, NTEU Chapter 250, 46 FLRA 1107, 1112 (1993). However, the Arbitrator also found that directing the Agency to change the disputed ratings would not be an "appropriate action." Award at 4. We construe this statement as a finding by the Arbitrator that he was unable, on the record before him, to determine what the rating would have been under a correct application of the performance standard. As such, the Arbitrator properly refused to direct the Agency to grant the grievant specific ratings and, instead, required the Agency to reevaluate the grievant's performance. See U.S. Department of the Army, Red River Army Depot Texarkana, Texas, Local R14-52 and National Association of Government Employees, 45 FLRA 626, 629 (1992); U.S. Department of the Army, Headquarters, Army Garrison, Fort Ritchie, Maryland and National Federation of Federal Employees, Local 115, 43 FLRA 968, 972-73 (1992).

In this connection, we reject as unsupported the Union's assertion that "any reevaluation would be fictional, . . . ." Exceptions at 6. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 45 FLRA 631, 638 (1992) (Authority held that it was "improper for the [a]rbitrator to refuse to order a reevaluation of the grievant based only on the [a]rbitrator's speculation that a remand would 'produce no useful result.'") We also reject the Union's argument that the award "clearly demonstrate[s] that there was no adequate record maintained by management for performance evaluation at the time of the progress review or at the time of the appraisal." Exceptions at 6. We find nothing in the award which demonstrates that the Agency is unable to properly reevaluate the grievant's performance. In these circumstances, we find no basis on which to conclude that SSA II does not apply here and we decline to reconsider that decision.

We conclude that the Union's argument constitutes an attempt to relitigate the merits of the case before the Authority. As such, it provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

*/ Level 4 ratings denote "excellent" performance; level 5 ratings denote "outstanding" performance. The two GJTs involved in this case are defined, respectively, as "[r]esearches questions and problems," and "[m]akes final and binding decisions." Attachment to Exceptions at 54-55.