Health Care Financing Administration and American Federation of Government Employees, Local 1923 (Authority decision, February 13, 1987)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

Two Health Care Financing Administration secretaries challenged their 1985 performance appraisals, which rated them excellent rather than outstanding. An arbitrator sustained their grievances and directed the agency to raise their element scores and overall ratings. The Authority found that the arbitrator had improperly substituted his assessment of their work for management's appraisal. It modified the award to require the agency to reevaluate both employees under its established standards and the collective bargaining agreement. The grievances remained sustained, but the order did not set the employees' final ratings.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a) and management rights under § 7106(a)(2).
• Outcome: Award modified; agency must reevaluate rather than assign outstanding ratings.
• Key point: An arbitrator can require proper application of appraisal standards but cannot independently set employee ratings.

Full text (FLRA public release)

[ v25 p725 ]

25:0725(59)AR

The decision of the Authority follows:

25 FLRA No. 59

HEALTH CARE FINANCING ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923
Union

Case No. O-AR-1211

DECISION
I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Ira F. Jaffe 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. /*/

II. BACKGROUND AND ARBITRATOR'S AWARD

Grievances were filed and submitted to arbitration protesting the 1985 performance appraisals of the grievants, two secretaries, and seeking that the overall ratings of "excellent" be raised to "outstanding," the highest level of performance. The Arbitrator determined that in several respects the grievants' appraisals were not in accordance with the established performance standards, the grievants' job performance plans, and the parties' collective bargaining agreement. Consequently, the Arbitrator sustained the grievances and as his award directed the Agency "to change the Grievants' 1985 performance evaluations to reflect level 4 performance on each of the four job elements and to reflect an overall rating of 'outstanding.'"

III. EXCEPTION

The Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. Specifically, the Agency asserts that the Arbitrator substituted his own assessment of the grievants' job performance and his own evaluation of the grievants' performance ratings for those of management.

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); 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). 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 managemnet in the exercise of the rights under section 7106(a)(2)(A) and (B) to direct employees and assign work. In directing that the grievants' overall ratings be raised to "outstanding," the Arbitrator did not merely grant the grievants' work products as appraised by management the ratings to which they are entitled under the established standards. Instead, the Arbitrator rejected management's appraisals. The Arbitrator conducted an independent evaluation of the grievants' performance under the elements and standards established by management and substituted his judgment for that of management as to what the grievants' evaluations and ratings should have been.

V. DECISION

For these reasons, we find the Arbitrator's direction that the Agency change the grievants' performance evaluations to reflect level 4 performance on all elements and an overall rating of "outstanding" is contrary to section 7106(a) of the Statute. Accordingly, the award is modified to provide, as follows.

The grievances are sustained. The Agency is directed to reevaluate the grievants' performances in accordance with the established performance standards and the parties' collective bargaining agreement for the appraisal period in dispute.

Issued, Washington, D.C., February 13, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY

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

(*) As part of its opposition, the Union contends that the Agency's exception should be dismissed because under the parties' collective bargaining agreement, exceptions assertedly cannot be filed to arbitration awards, such as the award in this case, issued under the expedited arbitration procedures. However, we have previously rejected this argument, and we confirm that this matter is properly before us for decision. Social Security Administration and American Federation of Government Employees, Local Union 1923, 25 FLRA No. 37 (1987); Social Security Administration and American Federation of Government Employees, Local 1923, 22 FLRA No. 66 (1986); Social Security Administration and American Federation of Government Employees, AFL-CIO, 16 FLRA 552 (1984).