Social Security Administration and AFGE Local 1760 (Authority decision, April 21, 1986)

Final FLRA decision. The Authority denies exceptions to an arbitration award about a performance appraisal. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

A Social Security Administration employee grieved a performance rating based on a ten-month period after new standards took effect. An arbitrator found that the labor agreement entitled her to an appraisal covering twelve months and that the agency had not provided required progress discussions. He directed the agency to treat the ten-month rating as a progress review and make a new appraisal for the full period. The Authority held that this remedy left management to evaluate the employee under its standards and did not violate management rights or the cited appraisal regulation. It denied the agency's exceptions.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a); appraisal regulation at 5 C.F.R. § 430.201(c)(3).
• Outcome: Exceptions denied; twelve-month reappraisal remedy stands.
• Key point: Ordering management to perform a contract-compliant appraisal does not dictate the rating it must give.

Full text (FLRA public release)

[ v21 p401 ]

21:0401(53)AR

The decision of the Authority follows:

21 FLRA No. 53

SOCIAL SECURITY ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760, AFL-CIO
Union

Case No. 0-AR-1020

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Howard M. Golob filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The grievant objected to her performance evaluation rating of "Fully Satisfactory," under new performance standards, for a ten-month period ending on September 30, 1984, the end of the rating cycle established by the Agency. The grievant had received a rating of "Excellent" under previous standards. Article 21, Section 6A of the parties' collective bargaining agreement provided as follows:

A. Performance appraisals are normally prepared on a regular cycle. For employees other than seasonal employees this will be a twelve (12) month cycle except for certain situations as set forth in SSA policy.

The Arbitrator found that under the agreement the grievant was entitled to receive a performance appraisal covering a full 12 months regardless of whether that period coincided with the rating cycle followed by the Agency. The Arbitrator concluded that the Agency violated the parties' agreement by rating the grievant's performance at the end of the regular Agency rating cycle rather than at the end of 12 months. He found a further violation of the agreement in the Agency's failure to provide informal discussions and progress reviews to inform the grievant that her performance was not at the previous level of "Excellent." As his award, the Arbitrator ordered that the ten-month rating be stricken from the grievant's personnel records and be used only as a progress review and that the grievant be given a new appraisal for the requisite 12-month period.

III. FIRST EXCEPTION

A. Contentions

In its primary exception, the Agency contends that the award is contrary to law and Government-wide regulation. More specifically, the Agency contends that the award violates section 7106(a)(2)(A) and (B) of the Statute because the Arbitrator substituted his judgment for that of management with respect to the grievant's performance appraisal. As to its Government-wide regulation contention, the Agency specifically contends that the award violates 5 C.F.R. Section 430.201(c)(3), which provides that positions for which employment is not reasonably expected to exceed 120 days in a 12-month period may be excluded from the requirement for a performance appraisal. In support of this latter contention, the Agency in essence argues that the regulation requires it to appraise an employee who is in a position for more than 120 days, does not require that an employee be in the position for a full 12 months before a performance rating can be made, and permits the appraisal of an employee after 120 days in a particular position.

B. Analysis and Conclusions

The Authority finds that the Agency fails to establish that the award is contrary to the Statute or Government-wide regulation. The Authority first concludes that the Arbitrator did not substitute his judgment for that of management as to what the grievant's performance appraisal should be, but merely directed that the grievant be reevaluated by management for the requisite period under the established elements and standards. Such an award is not contrary to the Statute as alleged. Bureau of Engraving and Printing, U.S. Department of the Treasury and Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA No. 39 (1985).

Second, the Authority has previously decided that a proposal requiring annual performance appraisals is consistent with law and Government-wide rules and regulations and is within the duty to bargain. American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA 697 (1984); American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981), affirmed as to other matters sub nom. AFGE, Local 1968 v. FLRA, 6 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983). The Arbitrator concluded in his interpretation of Article 21, Section 6A of the parties' agreement that the grievant was entitled to an annual performance appraisal covering the full 12 months. The Agency fails to show that the negotiated provision, as interpreted by the Arbitrator to require appraisals on an annual basis, is violative of the Statute or the cited regulation. Further, there is nothing in 5 C.F.R. part 430 which imposes a specific requirement that performance appraisals must be accomplished on particular dates. The Authority concludes that the Agency is merely disagreeing with the Arbitrator's reasoning and conclusions and with his interpretation of the parties' agreement. It is well-established that such disagreement provides no basis for finding an award deficient. E.g., Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983).

IV. OTHER EXCEPTIONS

A. Contention

In its other exceptions, the Agency contends that the Arbitrator's finding that the appraisal should cover a 12-month period and that the grievant was not given required counselling is based on nonfacts and, further, that the award fails to draw its essence from the parties' agreement.

B. Analysis and Conclusion

The Authority concludes that the Agency's allegations merely constitute disagreement with the Arbitrator's interpretation of the collective bargaining agreement and as already indicated above, such disagreement provides no basis for finding the award deficient.

V. DECISION

Accordingly, for the above reasons, the Agency's exceptions are denied.

Issued, Washington, D.C., April 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY