American Federation of Government Employees, Local 2199 and Department of Veterans Affairs Medical Center, Salt Lake City (Authority decision, March 17, 1995)

Final FLRA decision. This Authority order denies an exception to an arbitration award and ends the exceptions proceeding. 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 addresses a performance appraisal and does not decide an unfair labor practice.

Plain-English summary

A VA Medical Center employee received a fully successful appraisal after higher ratings in previous years. AFGE Local 2199 grieved the appraisal and argued that the employee's midyear review should have identified his rating on each performance element. An arbitrator denied the grievance, finding that the supervisor used the review form required by the parties' agreement. The Authority held that the cited regulation requires a progress review but does not specify that each element must be discussed separately. It denied the union's exception and request to return the case to the arbitrator.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a); progress-review rule in 5 C.F.R. § 430.205(e).
• Outcome: Union's exception denied; fully successful appraisal left in place.
• Key point: The regulation did not require an element-by-element explanation at the midyear review.

Full text (FLRA public release)

[ v50 p257 ]
50:0257(45)AR

The decision of the Authority follows:

50 FLRA No. 45

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2199

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

SALT LAKE CITY, UTAH

(Agency)

0-AR-2640

_____

DECISION

March 17, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Marshall A. Snider 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 filed an opposition to the Union's exception.

The Arbitrator denied the grievance of an employee who challenged his performance appraisal.

For the following reasons, we find that the Union's exception fails to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.

II. Background and Arbitrator's Award

The grievant received a rating of fully successful after having received ratings of outstanding and highly successful in preceding years. A grievance was filed claiming that the grievant should have received a higher rating for the period in question. The dispute was submitted to arbitration on the following stipulated issue:

[W]hether the [Agency] violated the law, regulations, or the
[parties'] agreement in connection with the Grievant's 1992-93 appraisal and, if so, what is the remedy?

Award at 1.

As relevant here, the Arbitrator rejected the Union's assertion that the Agency violated Article 32, Section 6C by failing to inform the grievant at his mid-year progress review that he was performing at less than a highly successful level.(1) The Arbitrator found that by specifying the use of VA Form 5-3482b, the parties' agreement incorporated that form as the means of describing an employee's level of performance, and that the supervisor had complied with the agreement by using that form.

III. Exception

A. Union's Contention

The Union asserts that the award is contrary to 5 C.F.R.
§ 430.205(e), which, according to the Union, required the supervisor to advise the grievant as to the specific level of his performance on each of the four elements in his performance plan.(2) The Union asserts that the Arbitrator erred in interpreting Article 32, Section 6C as requiring only that the grievant's supervisor use VA Form 5-3482b. According to the Union, the agreement cannot be read to obviate the requirement contained in 5 C.F.R.
§ 430.205(e). Finally, citing the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990), the Union requests that this case be remanded to the parties for resubmission to the Arbitrator to determine if the record permits a finding that the grievant should have received a higher rating.

B. Agency's Opposition

The Agency contends that the Union is merely disagreeing with the Arbitrator's interpretation of the agreement and that past practice supports the Arbitrator's findings pertaining to the conduct of the grievant's progress review. The Agency also asserts that the award does not violate 5 C.F.R.
§ 430.205(e) because, in a mid-year progress review, a supervisor must provide only a general evaluation of an employee's performance.

IV. Analysis and Conclusions

The Union has failed to establish that the award is contrary to 5 C.F.R. § 430.205(e). That regulation does not describe the degree of specificity that a supervisor must use to discuss an employee's performance and does not state that a supervisor must address separately each performance element. Accordingly, the fact that the grievant's supervisor may not have informed the grievant of his level of performance on each element does not establish that the award is deficient. In addition, we reject the Union's assertion that the award is inconsistent with that regulation because the Arbitrator failed to find that the parties' agreement incorporated the requirements of 5 C.F.R. § 430.205(e). As we have determined that the Agency's conduct was not inconsistent with the regulatory requirements, the Union's contention provides no basis for finding the award deficient.

Finally, because the award is not deficient and as the Union has presented no other basis on which to remand this case, we deny the request.

V. Decision

The Union's exception is denied.

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

1. Article 32, Section 6C provides:

The rater shall hold a progress review for each employee at least once during the appraisal period, usually at the midpoint. An employee shall be informed of his/her level of performance by comparison with the elements and performance standards established for his/her position. The progress review shall be documented on the appropriate space on the appraisal Form, VA Form 5-3482b. The employee will be provided a copy upon request. If performance of any element is less than fully successful, appropriate action in the form of a written counseling or a warning of unacceptable performance should be initiated to correct the performance deficiency.

Award at 2.

2. 5 C.F.R. § 430.205(e)
   provides:

A progress review shall be held for each employee at least once during the appraisal period. At a minimum, employees shall be informed of their level of performance by comparison with the performance elements and standards established for their positions.