U.S. Federal Labor Relations Authority

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32:0325(51)AR - - AFGE Local 32 and OPM - - 1988 FLRAdec AR - - v32 p325

[ v32 p325 ]
The decision of the Authority follows:

32 FLRA No. 51






Case No. 0-AR-1467


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator James M. Harkless 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 exceptions.

The Arbitrator denied a grievance which involved an employee's performance appraisal because the Arbitrator found that the Union had presented no basis for setting aside the appraisal. The Union argues that the Arbitrator failed to consider evidence showing violations of law by the Agency both as to the grievant's performance standards and as to her appraisal. We conclude that the Union's exceptions must be denied.

II. Background and the Arbitrator's Award

During the rating period, the grievant, a GS-13 Program Analyst in the Research and Demonstration Staff of the Office of Performance Management, was detailed to an unclassified position in the Workforce Management Division (WMD). The detail began on December 3, 1984, and was extended to November 27, 1985. During the detail, the unclassified position was certified as a Management Analyst position with duties related to personnel policy analysis of such matters as OMB Circular A-76 (A-76). On January 31, 1985, the grievant was assigned to analyze the cost comparison formula contained in A-76.

In February 1985, the grievant's supervisor on the detail met with the grievant concerning proposed performance standards and elements and reviewed those standards and elements with her. The proposed performance appraisal plan contained three critical elements. At the completion of this review, the grievant signed the standards without objecting to them or questioning their application to her A-76 project assignment.

On November 18, 1985, the grievant's supervisor on the detail gave her a performance appraisal. That appraisal was replaced by another appraisal on November 21, 1985. The latter appraisal was signed by her supervisor on the detail and by her supervisor of record in the Analysis and Evaluation Division. The grievant was given an unacceptable rating for her overall performance and was rated unsatisfactory under two elements. The unsatisfactory rating for the first element in dispute was based on the fact that the grievant had failed to meet several due dates for her A-76 project, and the unsatisfactory rating for the second element in dispute was based on the grievant's failure to keep her supervisor posted as to her status on the project.

The grievant grieved the appraisal. After meeting with the grievant and reviewing the grievance, Barbara Fiss, the Agency's Deputy Assistant Director, rescinded the November 21 rating and gave the grievant a new overall rating of minimally successful. Concerning the first element, Fiss noted that although the grievant missed several deadlines and that the completed product did not contain an acceptable quality or depth of analysis needed for a fully successful rating at the GS-13 level, the product showed a good faith effort and warranted a rating of satisfactory. Concerning the second element in dispute, Fiss found that a rating of fully successful was appropriate. Fiss also arranged for the reassignment of the grievant.

The Union accepted Fiss's rescission of the November 21 appraisal and the rating change as to the second disputed element. The Union challenged Fiss' decision as to the first element and the grievant's overall rating. The grievance was denied and the Union sought arbitration.

The Arbitrator found that the grievance was arbitrable to the extent that it concerned matters related to whether the Agency violated the negotiated agreement or any law or regulation in evaluating the grievant. As to the merits of the grievance, the Arbitrator found that the only issue before him concerned the appraisal as to the first element, which resulted in an overall rating of minimally successful. He found that the primary allegation concerned whether the grievant's A-76 assignment was related to the performance standards contained in that element. The Arbitrator noted that the issue was "very close to asking the Arbitrator to substitute his judgment for [m]anagement's as to the appropriateness of the standards which it had established," and concluded that he could not address the appropriateness of the standards. Arbitrator's Award at 39. The Arbitrator further noted, however, that he could consider whether, as required by law, the standards were related to the position. He found that the Agency had established the necessary relationship between the performance standards and the grievant's position.

The Arbitrator also found that the grievant had already been given the A-76 assignment when she received the applicable performance standards and elements, and that the duties and responsibilities described for a Management Analyst, GS-13 position in the WMD matched the duties which had been assigned to the unclassified position. He also concluded that those duties and responsibilities were covered by the performance standards and elements for a GS-13 Management Analyst position.

Although the Arbitrator noted that the grievant had not previously been involved in an A-76 project or assigned to a Management Analyst position, the Arbitrator found that the grievant: (1) signed the performance standards without questioning their application to that assignment; (2) did not claim that she lacked the necessary background, experience, or ability to do the work; and (3) had served for 10 years in various positions that provided her with the knowledge and experience required for the GS-13 Management Analyst position as set out in the position description. Therefore, the Arbitrator rejected the contention that the A-76 assignment had no relationship to the performance standards pertaining to the element at issue in the grievance. Since the Union presented no basis for setting aside the rating, the Arbitrator denied the grievance.

III. Positions of the Parties

The Union claims that the Arbitrator "disregarded and/or dismissed relevant evidence" showing that the Agency violated law and regulation. Union Exceptions at 2 and Supplement to Exceptions at 3b. The Union argues that the evidence presented to the Arbitrator confirmed that the Agency violated statutory merit principles, committed prohibited personnel practices, and established performance standards in violation of applicable requirements.

The Agency contends that the Union's exceptions constitute an attempt to relitigate the merits of the grievance.

IV. Discussion

We conclude that the Arbitrator's award is consistent with law and that the Union has not established that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

The Union has not set forth what evidence the Arbitrator failed to consider and has not shown how his award violates law. Rather, the exceptions constitute nothing more than disagreement with the Arbitrator's conclusions and do not establish a basis under section 7122(a) for overturning the award. See Veterans Administration and American Federation of Government Employees, 30 FLRA 648 (1987) (exceptions which attempt to relitigate the merits of a grievance before the Authority and which constitute nothing more than disagreement with the arbitrator's evaluation of the evidence and testimony presented, his reasoning, and his conclusion that the agency did not violate law provide no basis for finding an award deficient).

We do not adopt the Arbitrator's statements concerning the relief an arbitrator may grant in a performance appraisal case and arbitral authority to examine the appropriateness of performance standards established by management. We recently reexamined the authority of arbitrators in performance appraisal cases. In Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988), for example, we rejected the Authority's previous holdings that arbitrators may not "substitute their judgment" for that of management in granting certain remedies related to performance appraisal ratings. In Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987), we found that a grievance alleging that management violated applicable law or regulation when it established a grievant's performance standards and elements was arbitrable and grievable under the Statute. We also noted that the concern with arbitrators "substituting their judgment" for that of management presented no basis on which to preclude the arbitrability of such grievances. We note that the Arbitrator's conclusions regarding those issues do not appear to have affected his decision. Therefore, the Arbitrator's statements concerning arbitral authority in performance appraisal grievances do not provide a basis for finding the award to be deficient.

V. Order

The Union's exceptions are denied.

Issued, Washington, D.C.,

Jerry L. Calhoun, Chairman
Jean McKee, Member

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