Social Security Administration and American Federation of Government Employees, AFL-CIO (Authority decision, April 28, 1988)

Final FLRA decision. The Authority sets aside an arbitration award directing higher ratings for two job elements. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

An SSA employee challenged lower ratings on two elements of her performance appraisal. An arbitrator ordered the ratings raised after concluding that a fair evaluation would match or improve on the previous year's ratings. The agency filed exceptions, and the Authority found no clear waiver of its right to challenge the expedited award. It held that the arbitrator had not found a violation of law, regulation, or the labor agreement in applying the established standards. The Authority set aside the award because the rating changes conflicted with management's rights to direct employees and assign work.

Decision snapshot

• Authority: 5 U.S.C. §§ 7106(a)(2) and 7122(a).
• Outcome: Arbitrator's order to raise two ratings set aside.
• Key point: An arbitrator cannot cancel a rating based only on a different view of fairness without finding a defect in applying the established standards.

Full text (FLRA public release)

[ v31 p1277 ]
31:1277(116)AR

The decision of the Authority follows:

31 FLRA NO. 116

SOCIAL SECURITY ADMINISTRATION

Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO

Union

Case No. 0-AR-1450

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John F. Leahy. Following an expedited arbitration proceeding, the Arbitrator ordered the grievant's performance appraisal rating for two of her job elements changed to a higher rating. The exceptions were filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.

The questions presented here are (1) whether the Agency's exceptions should be dismissed because the Agency waived its right to file exceptions to expedited arbitration awards, and, if not, (2) whether the Agency has established that the award is deficient.

We conclude that the Agency did not waive its right to file exceptions. We also conclude that by sustaining the grievance and cancelling the grievant's performance rating for two of her job elements, the award is contrary to section 7106(a)(2)(A) and (B) of the Statute, and we will set the award aside.

II. Background and Arbitrator's Award

In her annual performance appraisal for the period in dispute, the grievant received an overall rating of "excellent." However, on two of her job elements--generic job tasks (GJTs) --she received a lower rating than she had received in the previous rating period. She filed a grievance alleging that those lower ratings were not "'fair' or objective." Award at 2. The grievance was submitted to arbitration under the expedited arbitration procedures of the parties' collective bargaining agreement.

The Arbitrator determined that a fair evaluation would have given the grievant ratings on the two disputed GJTs that were equal to or better than the ratings she had received the previous year. Accordingly, the Arbitrator directed GJT #20 changed from 2 to 3 and GJT #40 changed from 3 to 4.

III. Exceptions

The Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that the Arbitrator could not properly order the grievant's ratings changed because he did not find that management had failed to comply with applicable requirements of law, regulation, or the collective bargaining agreement in appraising the grievant. The Agency also contends that the award is contrary to 5 C.F.R. 430.204(k), providing for annual performance ratings, because the Arbitrator granted the grievant the ratings she had received in the previous year.

The Union contends that the Authority should dismiss the exceptions because under the provisions of the parties' collective bargaining agreement, exceptions may not be filed to an expedited arbitration award. The Union states that Article 25, Section 7 of the agreement provides, in part: "The arbitrator's decision shall be final and binding on both parties." Under this provision, the Union maintains that exceptions cannot be filed with the Authority and that the Authority should have dismissed the exceptions in Social Security Administration and American Federation of Government Employees, AFL - CIO, 16 FLRA 552 (1984) and Social Security Administration and American Federation of Government Employees, Local 1923, 22 FLRA 602 (1986). With respect to the substance of the Agency's exceptions, the Union claims that the award is not deficient.

IV. Analysis and Conclusions

A. The Agency Did Not Waive Its Right to File Exceptions

In SSA, 16 FLRA 552, and SSA, 22 FLRA 602, the Authority refused to dismiss exceptions filed to expedited arbitration awards. We reaffirm those rulings and find in this case that the Agency's exceptions are properly before us for decision.

Although parties may waive statutory rights, those waivers must be clear and unmistakable. For example, Internal Revenue Service, 29 FLRA 162 (1987). In determining whether a contract provision constitutes a clear and unmistakable waiver, we examine the wording of the provision and other relevant provisions of the agreement, bargaining history and past practice. See IRS, 29 FLRA at 166-67.

In this case, we conclude that Article 25, Section 7, quoted by the Union, does not constitute a clear and unmistakable waiver of the right to file exceptions to expedited arbitration awards. The provision makes no mention of appeals or the filing of exceptions under section 7122(a) of the Statute being precluded. Furthermore, the Union fails to otherwise establish that such a result was intended by the parties. Accordingly, we will resolve the Agency's exceptions.

B. The Award Is Deficient

We conclude that the award is deficient as contrary to management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

In Social Security Administration and American Federation of Government Employees, AFL - CIO, 30 FLRA 1156 (1988), we reexamined the remedial authority of arbitrators in performance appraisal matters. We concluded that many of the then-existing restrictions on the authority of arbitrators were not warranted. However, we reaffirmed that arbitrators may sustain grievances over the application of performance standards and may cancel performance ratings only when "they determine that management had not applied the established elements and standards or that management had applied the established elements and standards in violation of law, regulation, or a properly negotiated provision of the parties' collective bargaining agreement." 30 FLRA at 1160. An award which cancels a performance rating without making such a finding is deficient because it violates management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B). See id. at 1160-62; see also Ogden Air Logistics Center and American Federation of Government Employees, Local 1592, 31 FLRA 872 (1988).

In this case, according to the Arbitrator, the grievant claimed only that the ratings for the two GJTs "were not 'fair' or objective." In sustaining this grievance and canceling the performance ratings, the Arbitrator determined only "that a 'fair' evaluation would have given equal (or better) ratings on the individual GJT items to the year before." Award at 2. The Arbitrator did not find that the existing standards were applied to the grievant in violation of law, regulation, or the parties' collective bargaining agreement. Instead, the Arbitrator directed the Activity to raise the grievant's performance appraisal ratings for the two disputed GJTs based only on his finding of what would have been a "fair" evaluation.

Under established Authority precedent, which was reexamined and reaffirmed in SSA, 30 FLRA 1156, the Arbitrator was not authorized based on his findings to sustain the grievance and to cancel the grievant's performance ratings. Consequently, by directing that the grievant's performance ratings for GJT #20 and GJT #40 be raised, the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. */

V. Decision

The Arbitrator's award is deficient and is set aside.

Issued, Washington, D.C., April 28, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote */ In view of this decision, it is unnecessary to address the Agency's other exception to the award.