Mare Island Naval Shipyard and IFPTE Local 11 (Authority decision, August 15, 1986)

Final FLRA decision. The Authority sets aside the arbitration award as refined. The order concerns an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review of an Authority arbitration order is generally unavailable unless it involves an unfair labor practice under § 7116.

Plain-English summary

An arbitrator found that a shipyard employee's performance appraisal had been improperly based on only part of the review period and ordered a reevaluation. After management again rated two elements “marginal,” the arbitrator issued a refined award directing “satisfactory” ratings for those elements. The Authority set aside the award as refined. It held that the arbitrator had independently judged the employee's performance and replaced management's rating decision, contrary to management's statutory rights. The decision addressed the arbitrator's revised rating remedy rather than deciding what the employee's rating should be.

Decision snapshot

• Authority: Management appraisal rights under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Arbitration award as refined set aside.
• Key point: An arbitrator may correct unlawful appraisal procedures but cannot independently assign a performance rating.

Full text (FLRA public release)

[ v23 p259 ]

23:0259(32)AR

The decision of the Authority follows:

23 FLRA No. 32

MARE ISLAND NAVAL SHIPYARD
Activity

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 11, AFL-CIO-CLC
Union

Case No. 0-AR-1105

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Thomas Angelo 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

In his initial award the Arbitrator ruled that the grievant's performance had been improperly rated as "marginal" under critical elements 3, 5, and 7 in her annual performance appraisal. As a remedy the Arbitrator voided the appraisal and ordered the grievant's performance under those elements reevaluated. In particular, he ordered her performance under elements 3 and 5 reevaluated because he determined that the rating was based only on events during two months of the twelve-month appraisal period and did not properly consider her performance under another supervisor earlier in the appraisal period. The Arbitrator also retained jurisdiction to resolve any disputes regarding the remedy. According to the Activity, in reevaluating the grievant's performance under the three elements, both of her supervisors for the period met and reconsidered her performance for the entire appraisal period after which it was determined that her performance under elements 3 and 5 was "marginal;" that her performance under element 7 was "satisfactory;" and that her overall rating was "marginal." Subsequently, pursuant to his retained jurisdiction, the Arbitrator "refine(d)" his initial award. In his "refinemen(t)" he determined that the "marginal" ratings on reevaluation under elements 3 and 5 were not "sufficient(ly) support(ed)" or "justifi(ed)." On this basis he directed that the grievant's performance be rated "satisfactory" under elements 3 and 5 and that the grievant's overall rating be reevaluated accordingly.

III. EXCEPTION

The Agency contends that the Arbitrator's refinement of his award to direct that the grievant's performance under the two disputed elements be reevaluated as satisfactory is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that by directing that the grievant be rated satisfactory, the Arbitrator improperly conducted an independent evaluation of the grievant's performance and improperly substituted his judgment for that of management as to what the grievant's evaluation and rating should be.

IV. ANALYSIS AND CONCLUSIONS

We agree with the Agency. The Authority in a number of recent decisions has discussed in detail the role of an arbitrator in resolving disputes pertaining to performance appraisal matters. See, for example, Veterans Administration Hospital, Bath, New York and American Federation of Government Employees, Local 491, 22 FLRA No. 103 (1986). The Authority has found 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. An arbitrator may sustain the grievance on finding that management applied the standards in violation of law, regulation or an appropriate provision of the parties' collective bargaining agreement. In sustaining the grievance, the arbitrator as a remedy may direct 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, has cautioned 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.

In this case we find that the award is deficient by directing that the grievant's performance be rated "satisfactory" under elements 3 and 5 and that the grievant's overall rating be reevaluated accordingly. In directing these ratings the Arbitrator has not merely and appropriately granted the grievant's work product as appraised by management the rating to which entitled under the established standards. Instead, the Arbitrator rejected as not sufficiently supported or justified management's reevaluation of the grievant's performance and directed that her performance be evaluated as "satisfactory." The Arbitrator independently evaluated the grievant's performance and substituted his judgment for that of management as to what the grievant's performance evaluation and rating under the established standards of elements 3 and 5 should have been. Consequently, the award, as refined, is contrary to section 7106(a)(2)(A) and (B) of the Statute. See General Services Administration, Region 10 and American Federation of Government Employees, Council 236, 22 FLRA No. 8 (1986); Social Security Administration, Office of Hearings and Appeals, Region II and American Federation of Government Employees, Local 1760, 21 FLRA No. 86 (1986).

V. DECISION

Accordingly, the award, as refined, is set aside.

Issued, Washington, D.C., August 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY