49:0918(88)AR - - AFGE, Local 2006 and HHS, SSA, Philadelphia Regional Office - - 1994 FLRAdec AR - - v49 p918

[ v49 p918 ]
The decision of the Authority follows:

49 FLRA No. 88





LOCAL 2006










May 11, 1994


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 Thomas M. Phelan 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 Agency's exceptions.

The Arbitrator sustained a grievance disputing the grievant's annual performance rating. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant grieved her annual performance appraisal, in which she received a level-3 rating in each of the seven generic job tasks (GJTs) in her performance plan and an overall summary rating of fully successful.(1) The grievant asserted that her level-3 ratings should be changed to level 5, that her summary rating should be raised to outstanding, and that she should receive an appropriate performance award. When the grievance was not resolved, it was submitted to arbitration.(2) The Arbitrator framed the issue as follows:

The issue . . . is whether the grievant's performance standards were applied in [a fair and equitable] fashion when she was rated on all seven of her GJTs.

Award at 9.

The Arbitrator determined that the Agency violated Article 21, Section 3 of the parties' collective bargaining agreement by not applying the grievant's performance standards fairly and equitably.(3) In reaching this conclusion, the Arbitrator compared the grievant's part-year progress review with the part-year progress review of another employee who was evaluated against the same GJTs and who had received level-5 ratings on each GJT and a summary rating of outstanding. He determined that, at the time of the part-year progress reviews, "the evidence indicates that both employees were performing at the same level against their respective performance plans." Id. at 13. The Arbitrator found that the record did not demonstrate that either the grievant's or the other employee's performance changed between the progress review and the end of the appraisal period. According to the Arbitrator, "the application of the performance standards should have resulted in a determination that the two employees had the same summary rating level if the performance standards were being applied in a fair and equitable manner." Id. at 14.

The Arbitrator then found that there was sufficient evidence in the record on which to determine the grievant's proper performance ratings. The Arbitrator concluded that "the record indicates that the grievant was performing at the same level as the other employee who received a summary rating level of outstanding, and since no issue has been raised as to that rating being the proper one, the grievant's performance should have been similarly rated on each of her GJTs and the summary rating level." Id. at 14-15. Accordingly, as his award, the Arbitrator cancelled the grievant's appraisal and rating and directed that management award the grievant level-5 ratings on all seven of her GJTs and a summary rating of outstanding. The Arbitrator also directed the Agency to pay the grievant any difference between the monetary award she received for her fully successful evaluation and the amount awarded for an outstanding rating.

III. Positions of the Parties

Citing Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I) and 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), the Agency asserts that the award does not satisfy the first prong of the SSA II test. According to the Agency, the Arbitrator improperly compared the grievant's progress review to the progress review of another employee instead of comparing the grievant's full-year performance to the applicable performance standards. The Agency also contends that the award does not satisfy the second prong of the test because the Arbitrator lacked sufficient information to warrant raising the grievant's ratings.

The Union argues that the Agency's exceptions should be dismissed because they are an attempt to relitigate the grievance before the Authority and constitute mere disagreement with Arbitrator's evaluation of the evidence.

IV. Analysis and Conclusions

In SSA II, we described the two-prong test, established in SSA I, to analyze 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.

SSA II, 34 FLRA at 328.

We conclude that the Arbitrator's award satisfies both prongs of the SSA II test. Under the first prong, the Arbitrator properly cancelled the grievant's performance appraisa