[ v21 p991 ]
21:0991(118)AR
The decision of the Authority follows:
21 FLRA No. 118
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2014
Union
and
SOCIAL SECURITY ADMINISTRATION,
REGION IV
Activity
Case No. 0-AR-999
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Lawrence Kanzer filed by the Activity 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
The grievants in this case, contact representatives in the Activity's
teleservice center, claimed that they received lower performance ratings
than they should have because, after the beginning of the designated
annual appraisal period, the Activity improperly changed and
retroactively applied the requirements for the number of phone calls and
workload reports to be completed each hour. According to the
Arbitrator, the annual appraisal period was from October 1 of the year
to September 30 of the following year; the Activity notified the Union
of the changes in the requirements on October 28 of the appraisal year
involved; the employees were informed of the changes in November; and
the Activity apparently implemented the new requirements on or about
February 1 and applied them retroactively to the beginning of the
appraisal period when the employees' performance for the period from
October through December was evaluated at the first quarterly review of
their performance. The Union claimed that the requirements were
performance standards and that under the parties' national collective
bargaining agreement, the Activity was required to give 30 days advance
notice of any proposed change in such standards and to provide employees
with the performance standards for their positions before the beginning
of the annual appraisal period. The Union further maintained that under
the parties' agreement and regulations, /1/ employees were entitled to
be evaluated for the entire 12-month period under the standards in
effect on October 1 of the appraisal year. The Activity principally
argued that although the requirements were used to evaluate employee
performance, they were "numeric guidelines" and not performance
standards; and that the establishment of such performance requirements
is a management right under section 7106(a)(2) of the Statute.
The Arbitrator found that based on all the evidence, including the
fact that a number of supervisors referred to the requirements in
writing as "standards" and the fact that the requirements were used to
evaluate employee performance, the requirements were performance
standards. The Arbitrator further found that under the parties'
agreement the Activity did not have a right to unilaterally change
performance standards during the appraisal period and that the Union had
a right to object to and negotiate any changes prior to implementation.
The Arbitrator essentially concluded that the Activity was required to
notify the Union and the employees prior to the start of the annual
appraisal period of any new performance standards and that the Activity
violated the parties' agreement by changing the standards at issue in
this case after the beginning of the appraisal period involved and by
implementing and retroactively applying those new standards in that
period. The Arbitrator therefore sustained the grievances and, as a
remedy, ordered the Activity to reappraise the grievants' performance
for the entire year using the performance standards that were in effect
at the beginning of that period.
III. EXCEPTION
As its exception, the Activity contends that the award is contrary to
section 7106(a)(2)(A) and (B) of the Statute. In support of its
contention, the Activity argues: (1) by finding that the numerical
guidelines are performance standards, the Arbitrator improperly
substituted his judgment for that of management since the actual
standard management had established was a non-quantitative standard;
(2) assuming that the guidelines are performance standards, the
Arbitrator's award improperly requires management to negotiate on the
content of the standards and prevents management from changing the
standards after the start of the appraisal period when the change was
necessary to ensure accomplishment of its mission; and (3) the award
improperly requires the Activity to reappraise the grievants'
performance using performance standards of the prior appraisal year.
IV. ANALYSIS AND CONCLUSIONS
1. "Guidelines" or "Performance Standards"
Under 5 U.S.C. Section 4302(b), an agency's performance appraisal
system must provide for the establishment of "performance standards
which will, to the maximum extent feasible, permit the accurate
evaluation of job performance on the basis of objective cirteria . . .
related to the job in question for each employee or position under the
system." The Office of Personnel Management, the agency authorized under
5 U.S.C. Section 4302(b) to issue regulations implementing the statutory
requirements for performance appraisal systems, defines the term
"performance standard" in 5 CFR 430.203 as follows:
"Performance standard" means a statement of the expectations or
requirements established by management for a critical or
non-critical element at a particular rating level. A performance
standard may include, but is not limited to, factors such as
quality, quantity, timeliness, and manner of performance.
Thus, under the applicable law and regulations, performance standards
establish the level of job performance required of an employee with
regard to the duties and responsibilities of the employee's position.
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691
F.2d 553 (D.C. Cir. 1982).
In this case, the Activity clearly established a level of
quantitative performance required for each contact representative in its
"guidelines" for the number of pnone calls and workload reports to be
completed each hour. As found by the Arbitrator, the Activity
acknowledged that it used the quantitative requirements to evaluate
employee performance and the Activity's supervisors considered the
requirements to be performance standards. In these circumstances, the
Authority therefore concludes that the "guidelines" meet the definition
of "performance standards" and that the Activity has failed to establish
that the Arbitrator's award finding that the guidelines were in fact
performance standards is in any way deficient. Bureau of Prisons,
Department of Justice and American Federation of Government Employees,
Local 148, 21 FLRA No. 15 (1986) (where the agency defined the standard
for "outstanding" performance in a regulation).
2. Establishing and changing performance standards
The Authority has repeatedly held that an arbitration award may not
interpret or enforce a collective bargaining agreement so as to
improperly deny an agency the authority to exercise its rights under
section 7106(a) of the Statute. National Treasury Employees Union and
U.S. Customs Service, 17 FLRA 38 (1985). With regard to performance
standards, the Authority has held that proposals that would require
negotiations concerning the establishment or content of standards
interfere with management's rights to direct employees and to assign
work under section 7106(a)(2)(A) and (B) of the Statute and, therefore,
such proposals are nonnegotiable. Bureau of Public Debt, 3 FLRA 769-81;
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 3 FLRA 784, 787-89
(1980). Thus, it is clear that the establishment and determination of
the content of performance standards constitute an exercise of rights
reserved to management under section 7106(a). Additionally, the
Authority has held that a decision to revise performance standards is a
right reserved to management under section 7106(a) of the Statute.
Department of the Air Force, Air Force Logistics Command, Wright
Patterson Air Force Base, Ohio, and Newark Air Force Station, Newark,
Ohio and American Federation of Government Employees, Local 2221,
AFL-CIO, 21 FLRA No. 78, slip op. at 2 (1986). /2/ Moreover, with
regard to the authority of an arbitrator in resolving grievances
concerning performance appraisals, the Authority has specifically held
that an arbitrator may not substitute his or her judgment for that of
the agency as to the appropriateness of critical elements or performance
standards established for a position. Bureau of Prisons, 21 FLRA No.
15, slip op. at 4, 6.
In this case, the Authority finds that the Arbitrator's award is
deficient as contrary to section 7106(a)(2)(A) and (B) in two respects.
First, to the extent that the award may be construed as requiring the
Activity to negotiate concerning the establishment or content of any
performance standard the award is contrary to section 7106(a)(2)(A) and
(B). Second, to the extent the award may be construed as improperly
denying the authority of the Activity to exercise its rights to revise
the grievants' performance standards and to prospectively evaluate their
performance under the changed standards during the designated appraisal
period the award is also contrary to section 7106(a)(2)(A) and (B).
However, to the extent that the award prohibits retroactive
application of the new standards to the period before the requirements
were implemented and the employees were made aware that their
performance was going to be measured against the new requirements, the
award is not deficient. In that regard, the U.S. Court of Appeals for
the Federal Circuit recently held that agency changes in performance
standards during the course of a designated annual appraisal period and
evaluations of employees under the new standards are not prohibited by 5
U.S.C. Section 4302(b)(2) /3/ provided that the substantive rights of
employees are preserved. Weirauch v. Department of the Army, No.
85-2290 (Fed. Cir. Jan. 30, 1986). In its decision in that case, the
court rejected the employee's two arguments: (1) that since 5 U.S.C.
Section 4302(b)(2) required the agency to communicate the elements and
standards of his position to him before the start of the annual
appraisal period, he was therefore entitled to be evaluated for the full
year under the elements and standards that were in effect at the
beginning of the period, and (2) that the agency had violated section
4302(b)(2) by changing his standards and evaluating his performance
under the changed standards during the annual appraisal period. The
court found, in agreement with the Merit Systems Protection Board's
interpretation of section 4302(b)(2), for example, Cross v. Department
of the Air Force, 84 FMSR 6093 (1984), which interpretation the court
also found was in accord with that of the Office of Personnel Management
and was supported by the legislative history of the provision, that the
substantive rights of employees in the appraisal situation described
were not tied to the officially-designated annual appraisal period of
the agency. The court agreed with MSPB that there was no statutory
restriction on the number or frequency of evaluations of employees
within the appraisal period fixed by the agency in its master appraisal
system. The court determined that where an agency has a yearly
appraisal period, the evaluation of individual employees properly may
involve more than one standard if the standard has been changed,
provided that the substantive rights of the employees are preserved,
namely: to be made aware of the critical elements and standards by
which their performance is to be appraised before being evaluated, and
to be evaluated under those elements and standards after a period of
time long enough to afford them an ample opportunity to improve.
In the facts of this case, as determined by the Arbitrator, it
appears that the requirements were not implemented until on or about
February 1 of the annual appraisal period and that the employees were
not made fully aware that their performance was being evaluated under
the new standards until the time of their first quarterly performance
review. In these circumstances, the Authority concludes that to the
extent that the Arbitrator's award prohibits the retroactive application
of the new performance requirements to the period before February 1, the
award is not deficient as alleged.
3. Reappraisal of the grievants
The Authority has previously held that in resolving a grievance
concerning a performance appraisal, an arbitrator may properly direct
that an aggrieved employee's performance be reappraised in certain
circumstances. Where the arbitrator determines that management failed
to apply its established standards to the aggrieved employee or applied
those standards to the employee in violation of law, regulation or an
appropriate general, nonquantitative requirement the parties may have
agreed upon, the arbitrator to that extent may sustain the grievance.
In such circumstances, the arbitrator, as a remedy, may direct that the
grievant's performance be reevaluated by management utilizing the
performance standards it had established and/or that the grievant's
performance be reevaluated in accordance with law, regulation or the
approprate general, nonquantitative requirement in the parties'
agreement. Bureau of Prisons, at 5-6.
In the circumstances of this case, where the Arbitrator directed the
Activity to reappraise the grievants' performance, the Authority finds
that for the period from October 1 through January 31, the Arbitrator's
remedy is not contrary to section 7106(a)(2)(A) and (B) of the Statute
as alleged. Specifically, where the employees were entitled to be made
aware of their performance standards before being evaluated and where
the requirements apparently were implemented on or about February 1, and
the employees were not made fully aware by the Activity that they were
being evaluated under the new requirements until the first quarterly
performance review, the Authority concludes that the Activity was
properly directed to reappraise the grievants' performance for the
period from October 1 through January 31 under the established standards
that were in effect on October 1.
V. DECISION
Accordingly, for the above reasons, the remedy awarded by the
Arbitrator is modified to direct the Activity to reappraise the
grievants' performance for the period from October 1 through January 31
of the designated appraisal period under the standards that were in
effect on October 1, to reappraise their performance for the period from
February 1 to September 30 of that appraisal period under the standards
that were implemented on or about February 1, and to grant the grievants
the appropriate annual performance rating for the entire period.
Issued, Washington, D.C., May 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The union cited 5 CFR part 430, subpart B, which at the time
pertinently provided:
5 U.S.C. 4302(a) and (b) require that each appraisal system
shall provide for establishing performance standards based on the
requirements of employee's positions, communicating the standards
of performance and the critical elements of the position at the
beginning of each appraisal period, and appraising employees based
on a comparison of performance with the standards established for
the appraisal period.
(2) In its decision in 21 FLRA No. 78, the Authority also noted that
where an agency exercises a reserved management right under section
7106(a) of the Statute to change a condition of employment of unit
employees, the agency has a duty to provide adequate prior notice to the
exclusive representative and, upon request, to bargain consistent with
section 7106(b)(2) and (3) of the Statute with respect to the procedures
that management will follow in exercising such right and with respect to
appropriate arrangements for employees who may be adversely affected by
the exercise of the right.
(3) 5 U.S.C. Section 4302(b)(2) provides:
(b) Under regulations which the Office of Personnel Management
shall prescribe, each performance appraisal system shall provide
for--
. . . . . . .
(2) as soon as practicable, but not later than October 1, 1981,
with respect to initial appraisal periods, and thereafter at the
beginning of each following appraisal period, communicating to
each employee the performance standards and the critical elements
of the employee's position(.)