GSA Region 10 and AFGE Council 236 (Authority decision, June 6, 1986)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. 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

An arbitrator ordered an employee’s performance rating raised to outstanding. The Authority found that the arbitrator had independently judged how the employee performed against standards, substituting his appraisal for management’s. It removed the ordered rating and directed management to reevaluate the employee under its appraisal system and the agreement.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a), 5 U.S.C. § 7122(a).
• Outcome: Award modified to require reevaluation instead of an outstanding rating.
• Key point: An arbitrator may require a lawful reevaluation but cannot substitute an independent performance rating for management’s.

Full text (FLRA public release)

[ v22 p82 ]

22:0082(8)AR

The decision of the Authority follows:

22 FLRA No. 8

GENERAL SERVICES ADMINISTRATION,
REGION 10
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236
Union

Case No. 0-AR-1051

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator M. Zane Lumbley 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 dispute in this case was submitted to the Arbitrator pursuant to his continuing jurisdiction reserved in an earlier award concerning the appraisal of the performance of the grievant. In that award the Arbitrator found that in appraising the grievant's performance for the period in dispute, the Activity had violated Article 19 of the parties' National Agreement which provides that the performance appraisal system, as applied, will be "fair, equitable, (and) reasonable." Pursuant to this finding the Arbitrator, in part, had ordered that the grievant be reappraised by management. Accordingly, the Activity had reappraised the grievant and rated her overall as "highly successful." When the grievant disagreed with this rating, claiming that she deserved an overall rating of "outstanding," the continuing jurisdiction of the Arbitrator was invoked to resolve the issue of the propriety of her overall rating of "highly successful."

The Arbitrator noted that under the parties' agreement, highly successful performance is defined as performance which "exceeds the performance standards for a given position 50% of the time or more" and outstanding performance is defined as performance which "exceeds the performance standards for a given position 85% of the time or more." The Arbitrator further noted that in her annual appraisal, the grievant was rated as exceeding the performance standards 50% of the time as to two of her job elements and as meeting the standards as to her other job element. On review of this performance appraisal and the grievant's overall rating, the Arbitrator determined that the rating was arrived at arbitrarily. Specifically, he ruled that there had not been a complete and reasonable review of all the factual information relating to the grievant's performance under the respective job elements as required by the agency handbook on the general performance appraisal system. He further ruled that the appraisal contained numerous contradictions, misstatements of fact, assessments of fault which did not lie with the grievant, and references to performance occurring outside the period stipulated to and designated by the parties to serve as the basis for her appraisal for the two appraisal periods in question. After discounting all of these components of the grievant's appraisal, the Arbitrator concluded that there was nothing in the appraisal of a negative nature and that consequently the grievant deserved and overall rating of "outstanding." Accordingly, as his compliance opinion and award, the Arbitrator ordered that the grievant be given a rating of "outstanding" for the two appraisal periods in question.

III. EXCEPTION

In its exception the Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. Specifically, the Agency argues that by supplanting management's assessment of the grievant's performance with his own evaluation, the Arbitrator contravened the principle enunciated by the Authority that an arbitrator may not substitute his or her judgment for that of management as to what an employee's performance evaluation and rating should be. The Agency maintains that even if the Arbitrator effectively found that the performance standards had not been applied to the grievant fairly, equitably, and reasonably as required by the parties' agreement, there was no basis for the Arbitrator's conclusion that the grievant affirmatively met the standard necessary to achieve an outstanding rating. In particular, the Agency maintains that the mere agreement by the Arbitrator with the Union's arguments disputing certain performance deficiencies contained in management's appraisal of the grievant's performance does not justify the Arbitrator's ruling that the grievant was entitled to have been rated "outstanding."

IV. ANALYSIS AND CONCLUSIONS

In Social Security Administration, Office of Hearings and Appeals, Region II and American Federation of Government Employees, Local 1760, 21 FLRA No. 86 (1986), the Authority reviewed recent decisions discussing in detail the role of an arbitrator in resolving disputes pertaining to performance appraisal matters. In these decisions the Authority had specifically advised that an arbitrator may resolve an employee's grievance claiming to have been adversely affected in his or her performance appraisal by management's application of the established performance standards. The Authority had further advised that in resolving the grievance, the arbitrator properly may determine that management applied the established standards in violation of law, regulation, or an appropriate, nonquantitative review criterion, and the arbitrator to that extent may sustain the grievance. The Authority also had stated that in sustaining the grievance, an arbitrator as a remedy may direct that the grievant's work product be properly evaluated by management or where appropriate that the grievant's work product as appraised by management be granted the rating to which entitled under the established elements and standards. The Authority, however, had cautioned in these decisions that the arbitrator may not conduct an independent evaluation of an employee's performance under the elements and standards established by management and may not substitute his or her own judgment for that of management as to what that employee's evaluation and rating should be. SSA, Office of Hearings and Appeals, slip op. at 4 (citing 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); Bureau of Prisons, Department of Justice and American Federation of Government Employees, Local 148, 21 FLRA No. 15 (1986).

Applying these decisions in SSA, Office of Hearings and Appeals, the Authority determined that the arbitrator was not authorized to determine that the grievant's case production would have been rated at least as "fully successful" but for the violation of the parties' collective bargaining agreement. The Authority noted that management's appraisal of the grievant's numerical case production was based on the statistical determination of the grievant's average daily production and the rating of that production under the established standards. The Authority found that this was not the type of appraisal that would permit an arbitrator in an objective, nondiscretionary, and essentially mechanistic manner to determine without an independent evaluation that an aggrieved employee was entitled to a different rating under the established standards. In finding the award deficient, the Authority concluded that the arbitrator, in determining that the grievant's performance would have been rated higher, necessarily conducted an independent evaluation of the grievant's case production performance uner the established standards and substituted his judgment for that of management as to what the grievant's performance evaluation should have been. The Authority contrasted this case to the Bureau of Prisons case in which exceptions were denied where the arbitrator had expressly examined the performance standards and regulatory definition of outstanding performance, had specifically evaluated the application of the standards to the grievant's performance as described in his performance appraisal, and had determined in accordance with the definition of outstanding performance and management's own appraisal of the grievant's performance that the grievant was entitled under the established standards to a rating of "outstanding" as to three of his job elements.

In this case the Authority concludes, as it did in SSA, Office of Hearings and Appeals and in contrast to Bureau of Prisons, that the award is deficient. As noted, management's appraisal of the grievant's performance was based on a determination of the percentage of time that the grievant's performance exceeded the established standards. The Authority finds, similar to SSA, Office of Hearings and Appeals, that this is not the type of appraisal that would permit an arbitrator in an objective, nondiscretionary, and essentially mechanistic manner to determine without an independent evaluation that an aggrieved employee was entitled to a different rating under the established standards. Instead, the Arbitrator, in determining that the grievant deserved an overall rating of "outstanding," necessarily conducted an independent evaluation of the percentage of time that the grievant's performance exceeded established standards and clearly substituted his judgment for that of management as to what the grievant's performance evaluation under those established standards should have been. Although the Arbitrator properly could have ordered the grievant reevaluated on finding that management's appraisal of the grievant was not in accordance with the agency's performance appraisal system and apparently Article 19 of the parties' agreement, the Arbitrator instead independently determined what that rating would have been.

V. DECISION

For these reasons, the Authority finds that the Arbitrator's order that the grievant be given a rating of "outstanding" is contrary to section 7106(a) of the Statute and the decisions of the Authority and must be modified. Accordingly, the last sentence of the award, ordering that the grievant be given a rating of "outstanding" is struck and the following language substituted:

Management shall reevaluate in accordance with the general performance appraisal system and Article 19 of the parties' National Agreement the grievant's performance for the period stipulated to and designated by the parties and shall apply that rating to the appraisal periods in question.

Issued, Washington, D.C., June 6, 1986.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY