Veterans Administration Medical Center, Leavenworth, Kansas and AFGE Local 85 (Authority decision, June 30, 1987)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award requiring a new performance appraisal but leaving the disputed rating undecided. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally 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

An employee at the Leavenworth Veterans Administration Medical Center challenged a Highly Satisfactory appraisal and claimed management answered the grievance late. An arbitrator found the response timely but concluded that management had improperly relied on the previous year's evaluation. He ordered a new appraisal under the agreement and regulations without deciding that the employee deserved an Outstanding rating. AFGE Local 85 challenged the award as inconsistent with the agreement, law, and agency rules. The Authority held that the union had not shown a statutory defect and denied the exceptions, leaving the reappraisal remedy in place.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Union's exceptions denied; new appraisal required, rating not predetermined.
• Key point: A flawed appraisal process justified reappraisal, but did not itself establish a higher rating.

Full text (FLRA public release)

[ v27 p974 ]
27:0974(108)AR

The decision of the Authority follows:

27 FLRA NO. 108

VETERANS ADMINISTRATION MEDICAL
CENTER, LEAVENWORTH, KANSAS

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 85

Union

Case No. O-AR-1342

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Andrew L. Springfield 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

A grievance was filed and submitted to arbitration claiming that management violated the parties' Master Agreement by responding untimely to the grievance, and by improperly appraising the grievant's performance for the year as "Highly Satisfactory" rather than the "Outstanding". The Arbitrator determined that the Agency's response was not untimely and, therefore, denied that aspect of the grievance. He further determined that the Activity violated the agreement by using the grievant's evaluation for the previous year as the basis for the disputed appraisal. However, the Arbitrator concluded that this did not mean that the 'Highly Satisfactory' rating was wrong. As his award, he ordered the Activity to reappraise the grievant's performance in compliance with the agreement and regulations.

III. Discussion

The Union contends that the award violates the Master Agreement, law and agency regulations pertaining to performance appraisals.

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 cases. See, for example, Department of the Air Force, McGuire Air Force Base and American Federation of Government Employees, Local No. 1778, 6 FLRA 283 (1981) (a contention that the award was contrary to an agency regulation constituted nothing more than an attempt to relitigate the merits of the grievance before the Authority and provided no basis for finding the award deficient under the Statute); U.S. Marine Corps, Logistics Base, Barstow and American Federation of Government Employees, AFL - CIO, Local 1482, 10 FLRA 55 (1982) (a contention that the award was contrary to the collective bargaining agreement constituted disagreement with the arbitrator's interpretation of the agreement and his reasoning and conclusions, an attempt to relitigate the merits of the grievance before the Authority and provided no basis for finding the award deficient). Accordingly, the union's exceptions are denied.

Issued, Washington, D.C., June 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY