Veterans Administration Hospital, Bath, New York and AFGE Local 491 (Authority decision, July 31, 1986)

Final FLRA decision. The Authority modifies the arbitration award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitration award is generally excluded from ordinary judicial review unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

A VA hospital conceded that it had improperly evaluated an employee's performance. The arbitrator ordered a new evaluation but also required a rating of at least fully satisfactory. The Authority allowed the reevaluation remedy and found that the required minimum rating improperly substituted the arbitrator's judgment for management's. It modified the award to remove that rating requirement.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(A), 5 U.S.C. § 7106(a)(2)(B), 5 U.S.C. § 7122(a).
• Outcome: Award modified; reevaluation remains, but no minimum rating may be imposed.
• Key point: An arbitrator may order a proper reevaluation after a contractual violation but may not set its rating.

Full text (FLRA public release)

[ v22 p1063 ]

22:1063(103)AR

The decision of the Authority follows:

22 FLRA No. 103

VETERANS ADMINISTRATION HOSPITAL
BATH, NEW YORK
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 491
Union

Case No. 0-AR-1065

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Judith A. LaManna filed by the Agency 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

For the appraisal period of 1984-85, the grievant received an overall performance rating of minimally satisfactory. He filed a grievance that was ultimately submitted to arbitration claiming that his performance appraisal was procedurally improper. Noting that the Activity conceded that the grievant had been improperly evaluated in violation of the collective bargaining agreement, the Arbitrator stated the issue to be one of remedy. As the remedy for the violation, the Arbitrator directed that the Activity reevaluate properly the grievant's performance for the disputed appraisal period and issue to the grievant a performance rating for the period of fully satisfactory or higher.

III. EXCEPTION

As its exception the Agency contends that the award is contrary to section 7106(a) of the Statute. The Agency agrees that under the decisions of the Authority, the Arbitrator appropriately found that the grievant had not been properly rated and appropriately directed that management reevaluate properly the grievant's performance under the established elements and standards. However, the Agency maintains that by additionally ordering that the grievant's rating be no less than fully satisfactory, the award to that extent is contrary to management's rights under section 7106(a)(2)(A) and (B) of the Statute.

IV. ANALYSIS AND CONCLUSIONS

As noted by the Agency, the Authority in a number of recent decisions has discussed in detail the role of an arbitrator in resolving disputes pertaining to performance appraisal matters. General Services Administration, Region 10 and American Federation of Government Employees, Council 236, 22 FLRA No. 8 (1986); Social Security Administration, Office of Hearings and Appeals, Region II and American Federation of Government Employees, Local 1760, 21 FLRA No. 86 (1986); Bureau of Prisons, Department of Justice and American Federation of Government Employees, Local 148, 21 FLRA No. 15 (1986); Bureau of Engraving and Printing, U.S. Department of the Treasury and Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA No. 39 (1985). As acknowledged by the Agency, the Authority in these decisions found that an arbitrator may resolve an employee's grievance claiming to have been 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 applied the standards in violation of law, regulation, or an appropriate provision of the parties' collective bargaining agreement. The Authority also has stated that in sustaining the grievance, an arbitrator as a permissible remedy may direct that the grievant's work product be properly evaluated by management. The Authority, however, has cautioned in these decisions that the arbitrator may not substitute his or her own judgment for that of management as to what that employee's evaluation and rating should be.

In this case we find that by directing the Activity to rate the grievant's performance no lower than fully satisfactory, the Arbitrator improperly substituted her judgment for that of management as to what the grievant's performance evaluation and rating should be. Although the Arbitrator properly ordered the grievant reevaluated in accordance with the established performance elements and standards in order to remedy management's violation of the collective bargaining agreement, the Arbitrator's restriction of the rating on reevaluation to fully satisfactory or higher is deficient as contrary to section 7106(a)(2)(A) and (B) of the Statute.

V. DECISION

Accordingly, the Arbitrator's award is modified to strike any order or direction as to what the grievant's performance rating for the disputed appraisal period should be after reevaluation by management.

Issued, Washington, D.C., July 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY