NFFE Local 1745 and Veterans Administration (Authority decision, May 29, 1987)

Final FLRA decision. The Authority denies the union's exception to an arbitration award rejecting an employee's performance rating grievance. Under 5 U.S.C. § 7123(a)(1), Authority orders involving arbitral awards generally are excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A Veterans Administration employee challenged her fully satisfactory performance rating, seeking a rating one step higher. The arbitrator found that she should have received a higher mark on one responsibility, but found her supervisor's mark correct on another, so he denied the grievance. NFFE Local 1745 argued that the arbitrator had relied on evidence that should not have been admitted and that the award conflicted with performance appraisal rules. The Authority found no legal defect in the award and denied the union's exception.

Decision snapshot

• Authority: Arbitration exception under 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; grievance denial and overall rating stand.
• Key point: A challenge to the arbitrator's evidence and fact evaluation did not justify setting the award aside.

Full text (FLRA public release)

[ v27 p347 ]

27:0347(46)AR

The decision of the Authority follows:

27 FLRA No. 46

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1745
Union

and

VETERANS ADMINISTRATION
Agency

Case No. O-AR-1333

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator John A. Bailey 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.

II. Background and Arbitrator's Award

The grievant received an overall performancce appraisal rating of "fully satisfactory" for the period April 1, 1985, through March 31, 1986. As to five key responsibilities, she was considered to have "met" the prescribed levels of achievement for three of them while having "exceeded" the prescribed levels for the two others. If she had been deemed to have exceeded the prescribed level of achievement for each of the five key responsibilities, her rating would have been one step higher. She grieved her rating, and the matter was submitted to arbitration.

The Arbitrator stated the issue before him as whether the performance standards for three of the grievent's key responsibilities were applied improperly. He noted that in order for the grievant to prevail, it would be necessary for him to reverse the supervisor's judgment on all three of the responsibilities in question. The Arbitrator found in favor of the grievant with regard to one responsibility, found in favor of the Agency as to a second responsibility, and made no finding as to the third responsibility. The Arbitrator concluded that since the grievant's supervisor had correctly rated the grievant as to at least one of the responsibilities, the grievance must be denied.

III. Discussion

The Union contends that the award is deficient because it is contrary to law and regulation, in particular 5 C.F.R. Part 430 and Veterans Administration Regulation MP-5, Part 1, Chapter 430. The Union contends that the award was based on information that should not have been entered into the record before the Arbitrator.

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. See, for example, National Border Patrol Council and National Immigration and Naturalization Service Council and United States Department of Justice, Immigration and Naturalization Service, 3 FLRA 401, 404 (1980) (liberal admission of testimony and evidence is the usual practice in arbitration and contention that arbitrator erred in admitting certain evidence provides no basis for finding an award deficient under the Statute); Local 1919, American Federation of Government Employees and Veterans Administration National Cemetery, Farmingdale, Long Island, New York, 12 FLRA 605 (1983) (contentions which merely constitute disagreement with the arbitrator's evaluation of the evidence provide no basis for finding an award deficient). Accordingly, the Union's exception is denied.

Issued, Washington, D.C. May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY