---

38 FLRA No. 113

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3448

(Union)

0-AR-1964

DECISION

January 14, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Terry A. Bethel filed by the Union 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 Agency did not file an opposition to the Union's exception.

A grievance was filed disputing the grievant's performance rating in one job task. The Arbitrator sustained the grievance and directed the Agency to reevaluate the grievant on that job task.

For the following reasons, we conclude that the award is not deficient under section 7122 of the Statute. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

The grievant, a claims representative, received an overall performance rating of "excellent" for fiscal year 1989. The grievant filed a grievance asserting that his "excellent" rating for Generic Job Task (GJT) 7 should be changed to "outstanding" and, as a result of that change, his overall rating should be changed to "outstanding."

The Arbitrator sustained the grievance. The Arbitrator determined, as relevant here, that the Agency violated an agreement between the parties by failing to inform the grievant that his performance in GJT 7 had declined from the previous appraisal year.

To remedy the Agency's violation, the Arbitrator directed the Agency to reevaluate the grievant's performance in GJT 7 for fiscal year 1989 and that, in the reevaluation, the Agency "should consider whether its failure to furnish [the] grievant with the information required in the progress reviews adversely affected his ability to achieve an outstanding rating." Award at 8. The Arbitrator stated, in this regard:

Although I have found that [the grievant's supervisor] failed to comply with the agreement between the union and the agency that mandates informing employees of declines in performance, I cannot, as the union requests, order her to increase the rating. I think the rating process violated the agreement between the parties. I cannot, however, conclude that the rating itself violated the contractual standards. Even if I could do so, I am unable to determine what grievant's rating should have been.

Id. (emphasis in original).

III. The Union's Exception

The Union contends that the award is deficient because the Arbitrator improperly restricted his remedial authority, in violation of the Statute. According to the Union, the Arbitrator erroneously believed that he was without authority to raise the grievant's rating. The Union contends that, consistent with Authority decisions interpreting arbitral authority in performance appraisal cases, the Arbitrator properly "could have" raised the grievant's rating in GJT 7. Exceptions at 3. Accordingly, the Union requests the Authority to remand the case to the Arbitrator "with an explanation of the full scope of his authority and an opportunity to fashion an award of full relief." Id.

IV. Analysis and Conclusions

In U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990) (SSA), we described the following "two-prong test[]" involving the remedial authority of arbitrators in performance appraisal cases:

First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order management to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.

Consistent with the Authority's decision in SSA, we conclude that the Arbitrator did not improperly restrict his authority in this case. As the Union points out, the Arbitrator stated that it was "axiomatic that arbitrators are not managers and that they cannot substitute their judgment for supervisors in matters of discretion." Award at 7. The Arbitrator also stated, however, that he did not "know enough about the operation involved to hazard an informed guess about [the] grievant's performance or how it compared to that of other employees." Id. As such, we interpret the Arbitrator's statement that he was "unable to determine what [the] grievant's rating should have been[]" as an indication of his perceived inability to determine the proper rating, not a lack of authority to do so. Id. at 8.

There is, therefore, no basis on which to conclude that the Arbitrator erroneously believed that he was without authority to raise the grievant's rating. We note, in this regard, that the award in this case issued well after the Authority decision relied on by the Union. Consequently, this is not a case where a remand to the arbitrator is appropriate because a party was unable to inform an arbitrator of applicable law because that law changed during the pendency of the proceeding. Compare U.S. Army Missile Readiness Command and American Federation of Government Employees, Local 1858, 15 FLRA 286, 287 (1984) (attorney fee award remanded to parties to obtain clarification from arbitrator because the award was issued without the "benefit of the instruction and guidance" provided by the Authority concerning applicable law), with National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169, 172-73 (1986) (Authority held that as Authority guidance concerning the law applicable to attorney fee awards had long been issued, future awards which did not comply with law would not be remanded but instead would be set aside).

The Union has not demonstrated that the Arbitrator's award is deficient under section 7122(a) of the Statute and has not shown that a remand is appropriate or necessary in this case. Accordingly, the Union's exception will be denied.

V. Decision

The Union's exception is denied.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

---