Carswell Air Force Base and American Federation of Government Employees, Local 1364 (Authority decision, August 16, 1988)

Final FLRA decision. The Authority denies exceptions to an arbitration award concerning an employee's performance appraisal. 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

The president of AFGE Local 1364 grieved his Fully Successful performance rating, alleging retaliation for union activity. The arbitrator found no anti-union bias and no credible evidence that the employee deserved a higher rating. The union argued that the arbitrator had mishandled its retaliation claim and had relied on subjective appraisal standards. The Authority held that those arguments disputed the arbitrator's evaluation of evidence and did not establish that the award violated law, regulation, or Authority precedent. It denied the union's exceptions, leaving the award in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a); performance appraisal provisions of 5 U.S.C. § 4302 and 5 C.F.R. part 430.
• Outcome: Union's exceptions denied; arbitrator's denial of the grievance remains in place.
• Key point: Disagreement with an arbitrator's assessment of appraisal and bias evidence does not show that the award is deficient.

Full text (FLRA public release)

[ v32 p789 ]
32:0789(116)AR

The decision of the Authority follows:

32 FLRA No. 116

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

CARSWELL AIR FORCE BASE

Activity

and

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

LOCAL 1364

Union

Case No. O-AR-1500

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Ernest E. Marlatt. The Arbitrator denied the grievant's grievance over his overall performance rating of "Fully Successful." The Arbitrator found that the grievant's performance appraisal was not influenced in any way by anti-union bias and that the Union "offered no credible evidence whatsoever to indicate that grievant's performance merited a higher rating than 'Fully Successful.'" Award at 6.

The Union filed exceptions 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 Activity did not file an opposition.

We conclude that the Union has not established that the award is contrary to (1) law and regulation relating to performance appraisals, or (2) Authority case law. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, the Local Union President, filed a grievance contending that his performance rating was lowered to "Fully Successful" as a reprisal for his involvement in protected union activities. The Arbitrator found that the grievant's performance appraisal was not influenced in any way by anti-union bias and that the Union "offered no credible evidence whatsoever to indicate that grievant's performance merited a higher rating than 'Fully Successful.'" Award at 6. Therefore, the Arbitrator denied the grievance.

III. Exceptions

The Union contends that the award is contrary to Authority case law. The Union maintains that it presented a prima facie case that the grievant's performance appraisal was lowered as a reprisal for his involvement in protected union activities. The Union argues that under Authority case law, the Activity was required to show that the grievant would have received the same rating even in absence of union animus. The Union claims that the Arbitrator did not require the Activity to make the required showing and that, consequently, the award is deficient.

The Union also contends that the Arbitrator failed to properly evaluate the grievant's performance under the established performance standards as required by 5 U.S.C. º 4302, 5 C.F.R. part 430, and Department of the Air Force regulations. The Union maintains that it proved that the grievant had exceeded all the established standards. The Union argues that the Arbitrator denied the grievance by improperly relying on unwritten subjective standards.

IV. Discussion

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish 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.

The Union's contention that the award is contrary to Authority case law provides no basis for finding the award deficient. Contrary to the contention of the Union that it "presented a prima facie case" of union animus, Union's Exceptions at 1, the Arbitrator determined that the grievant's performance rating "was not influenced in any way by anti-union bias," Award at

6. In view of the Arbitrator's finding, the Union's contention that the
   Arbitrator erred by the manner in which he conducted the hearing after the Union had established a prima facie case constitutes nothing more than disagreement with the

Arbitrator's evaluation of the evidence and testimony on the issue of union animus. Such a contention provides no basis for finding the award deficient. See, for example, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 30 FLRA 482 (1987) (exceptions disagreeing with an arbitrator's evaluation of the evidence and testimony provide no basis for finding an award deficient).

The Union's contention that the Arbitrator improperly evaluated the grievant's performance under the established standards constitutes nothing more than an attempt to relitigate this case before the Authority and disagreement with the Arbitrator's evaluation of the evidence. Such a contention provides no basis for finding an award deficient. For example, Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local Union 85, 27 FLRA 974 (1987) (contention that an award violated law and regulation pertaining to performance appraisals constituted nothing more than an attempt to relitigate the matter and provided no basis for finding the award deficient); National Federation of Federal Employees, Local 1745 and Veterans Administration, 27 FLRA 347 (1987) (contention that an award was contrary to regulations relating to performance appraisals constituted disagreement with the arbitrator's evaluation of evidence and provided no basis for finding the award deficient).

V. Decision

The Union's exceptions are denied.

Issued, Washington, D.C.,

_______
Jerry L. Calhoun, Chairman

Jean McKee, Member
FEDERAL LABOR RELATIONS
AUTHORITY

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