Federal Prison System, U.S. Medical Center for Federal Prisoners and AFGE Local 1612 (Authority decision, September 23, 1986)

Final FLRA decision. The Authority modifies the arbitration award. 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 employee at the U.S. Medical Center for Federal Prisoners challenged a performance rating of “fully successful” rather than “exceeds.” The arbitrator found that the employee had been evaluated under different standards from other employees and ordered a reevaluation using a specified comparison group. The Authority upheld the finding that a reevaluation was warranted. It struck the detailed comparison method and any requirement to give the employee an “exceeds” rating in specified circumstances, because those directions intruded on management's right to choose an evaluation method and rating. Management must reevaluate the employee under its established standards and appraisal system.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Award modified; reevaluation required without the arbitrator's prescribed comparison method.
• Key point: An arbitrator may require a fair reevaluation but cannot dictate management's appraisal method or rating.

Full text (FLRA public release)

[ v23 p372 ]

23:0372(53)AR

The decision of the Authority follows:

23 FLRA No. 53

FEDERAL PRISON SYSTEM
U.S. MEDICAL CENTER FOR
FEDERAL PRISONERS
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1612
Union

Case No. 0-AR-1106

DECISION

I. STATEMENT OF THE CASE

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

II. BACKGROUND AND ARBITRATORS AWARD

A grievance was filed and submitted to arbitration on the substantive issue of whether the grievant was properly accorded an overall annual performance appraisal rating of "fully successful" rather than "exceeds" for the appraisal period ending March 31, 1985. The Arbitrator determined that the reviewing official failed to meet his responsibility under the performance appraisal regulation to review the grievant's rating for consistency with the rating given other employees. In particular, the Arbitrator determined that in the rating process of formulating performance ratings for the appraisal period in dispute, the grievant was unfairly discriminated against because the evidence showed that the grievant had been evaluated under standards different from those applied to other employees. Accordingly, as his award, the Arbitrator directed that the grievant's performance be reevaluated. In addition, he directed that the reevaluation be in accordance with an elaborate process that he specified in his award. In sum, the process provides for the selection, by a method specified by the Arbitrator, of a sample of five performance appraisals in which the appraised employee was rated "exceeds" for the appraisal period in dispute and provides for the comparison by the grievant's appraisal with the sample appraisals. In addition, it provides that the grievant's rating must be reevaluated solely by a comparison with the samples and requires under certain circumstances that the grievant's rating must be changed to "exceeds."

III. EXCEPTIONS

In its exceptions the Agency contends that the award is deficient by sustaining the grievance and by directing that the grievant be reevaluated in accordance with the procedure specified by the Arbitrator. Specifically, the Agency primarily argues that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute because the Arbitrator has substituted his judgment for that of management in the area of performance appraisal and has fashioned a remedy without basis in law, regulation, or the parties' collective bargaining agreement.

IV. ANALYSIS AND CONCLUSIONS

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. Mare Island Naval Shipyard and International Federation of Professional and Technical Engineers, Local 11, AFL-CIO-CLC, 23 FLRA No. 32 (1986); Veterans Administration Hospital, Bath, New York and American Federation of Government Employees, Local 491, 22 FLRA No. 103 (1986) (and cases cited in the decision). 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 had not applied the standards which it established to the grievant or had applied the standards in violation of law, regulation, or an appropriate provision of the parties' collective bargaining agreement. In sustaining the grievance, the arbitrator may direct that the grievant's work product be properly evaluated. The Authority, however, has cautioned that an arbitrator may not substitute his or her own judgment for that of management in the exercise of the rights under section 7106(a)(2)(A) and (B) to direct employees and assign work as such rights pertain to matters of performance appraisal. In particular, the Authority has repeatedly held that the arbitrator may not substitute his or her own judgment for that of management as to what the grievant's evaluation and rating should be. The Authority has also held that section 7106(a)(2)(A) and (B) encompass the right to determine the methods to be used in evaluating employee work performance. American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA No. 21 (1986) (Proposals 2-6).

Applying these decisions to this case, we conclude contrary to the argument of the agency that the Arbitrator properly sustained the grievance and properly ordered the grievant reevaluated on finding that the grievant's appraisal was not reviewed for consistency with other appraisals, as required by the performance appraisal regulation, and that in the rating process, the grievant was unfairly discriminated against by having been evaluated under different standards from those applied to other employees. However, in agreement with the Agency, we conclude that the process prescribed by the Arbitrator for reevaluation of the grievant's performance is contrary to section 7106(a)(2)(A) and (B) of the Statute. By requiring that the grievant's performance must be reevaluated solely by comparison with a sample of five appraisals selected under a precise method prescribed by the Arbitrator, the award interferes with management's right to determine the method by which it will evaluate an employee's work performance. Likewise, by specifying the circumstances under which the grievant's performance must be reevaluated as "exceeds," the Arbitrator improperly substituted his judgment for that of management as to what the grievant's performance evaluation and rating should be. Accordingly, this portion of the award is deficient and must be modified.

V. DECISION

For these reasons, the Arbitrator's award is modified by striking paragraphs 3 and 4 and substituting the following language as paragraph 3: /*/

3. To remedy the discrimination, management shall reevaluate
   the grievant's performance for the appraisal period in dispute under the established elements and standards and in accordance with the general performance appraisal system as contained in Program Statement 3430.7.

Issued, Washington, D.C. September 23, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/*/ In view of this decision, it is not necessary to specifically address the Agency's other contentions in its exceptions.