Social Security Administration and American Federation of Government Employees, Local 1122 (Authority decision, March 12, 1987)

Final FLRA decision. The Authority sets aside an arbitral award under 5 U.S.C. § 7122(a). Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award generally is excluded from judicial review unless it involves an unfair labor practice under § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

AFGE Local 1122 challenged part of a Social Security Administration employee's performance appraisal. An arbitrator kept the official rating at Fully Satisfactory but ordered the agency to treat it as a higher Level 3 rating when considering a cash award or certain promotions. The Authority held that this changed the rating for those decisions and substituted the arbitrator's judgment for management's appraisal. It set aside the award, leaving the original rating in place.

Decision snapshot

• Authority: Management rights to direct employees and assign work under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Arbitral award set aside; higher rating treatment rejected.
• Key point: An arbitrator cannot change an employee's effective performance rating for awards or promotions by directing management to treat it as a higher level.

Full text (FLRA public release)

[ v26 p137 ]

26:0137(15)AR

The decision of the Authority follows:

26 FLRA No. 15

SOCIAL SECURITY ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 1122, AFL-CIO
Union

Case No. 0-AR-1278

DECISION

I. STATEMENT OF THE CASE

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

II. BACKGROUND AND ARBITRATOR'S AWARD

A grievance was filed concerning the performance evaluation of an individual. It appears that the Union was contesting certain aspects of the evaluation process as it was applied to the grievant and the rating given to the grievant on a particular element of performance, GJT #15.
/1/ The Union argued more specifically that the rating for that element should be changed to "Level 3."

The Arbitrator determined that the rating of "Fully Satisfactory" on GJT #15 (apparently Level 2), should be maintained except for the following:

1. In making a decision on any cash award for which (the
   grievant) might have been eligible the awarding body shall consider the rating on GUT #15 to be Level 3; and

2. In any promotion examination for which (the grievant) files
   in which GJT #15 is a critical element, the reviewing body shall consider the rating to be Level 3.

III. AGENCY'S EXCEPTIONS

The Agency excepts to the award for two reasons. First, the Agency argues that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute because the Arbitrator substituted his judgment for that of management in determining what the grievant's rating should be. Second, the Agency argues that the award is contrary to 5 U.S.C. Section 4302(a)(3), which concerns the purposes that are served by an agency's performance appraisal system. The Agency notes that under 5 U.S.C. Section 4302(a)(3) and the parties' collective bargaining agreement, performance appraisals are used as a basis for taking such personnel actions as: training, rewarding, reassigning, promoting, reducing in grade, retaining, removing employees, and granting within-grade increases. The Agency contends the Arbitrator's decision to raise the rating for certain purposes was not explained and is inconsistent with the agreement and the cited authority.

IV. ANALYSIS AND CONCLUSIONS

In recent decisions we have discussed the role of an arbitrator in resolving disputes pertaining to performance appraisal matters. Social Security Administration and American Federation of Government Employees, Local Union 1923, 25 FLRA No. 37 (1987); Federal Prison System, U.S. Medical Center for Federal Prisoners and American Federation of Government Employees, Local 1612, 23 FLRA No. 53 (1986). We found that an arbitrator may resolve grievances over whether an employee was 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. An arbitrator may not, however, 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, an arbitrator may not substitute his or her own judgment for that of management as to what the grievant's evaluation and rating should be.

Applying these principles to this case, we conclude in agreement with the Agency that the Arbitrator improperly substituted his 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. Performance evaluations, or appraisals, form the basis for management determinations on a variety of personnel actions, as noted by the Agency. In directing that the grievant's rating on GJT #15 be considered as Level 3 for certain purposes, the Arbitrator has essentially changed the evaluation for those purposes. Thus, where the grievant is being considered for a cash award or where consideration is being given in certain promotion actions, the evaluation is altered by raising the rating on GJT #15 to Level 3. The Arbitrator has therefore substituted his own judgment for that of management in determining what the evaluation will be.

V. DECISION

Accordingly, the Arbitrator's award is set aside as contrary to section 7106(a)(2)(A) and (B) of the Statute. /2/

Issued, Washington, D.C., March 12, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

(1) The term GJT apparently stands for "Generic Job Task." See Social Security Administration and American Federation of Government Employees, Local Union 1923, 25 FLRA No. 37 (1987).

(2) In reaching this result, it is unnecessary to decide whether the award is also inconsistent with 5 U.S.C. Section 4302(a)(3).