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24:0435(46)AR
The decision of the Authority follows:
24 FLRA No. 46
U.S. DEPARTMENT OF LABOR
Agency
and
LOCAL 12, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
Union
Case No. 0-AR-1119
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Edith Barnett filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case concerns the failure of the four grievants
to be promoted. The grievants are GS-9 disclosure reports specialists
in a career-ladder with a full performance level of GS-11. After the
grievants had met the time-in-grade requirements for promotion and, in
the judgment of their supervisor, had demonstrated the ability to
perform at the GS-11 level, but had not been promoted, they met with
their supervisor who told them that the "climate was not right" for
their promotions. Subsequently, the grievants had a meeting with the
division chief who, according to the Arbitrator, also told them that
under "the present administration" the "climate was not right" for their
promotions. Not satisfied, the grievants filed the grievance
challenging their failure to be promoted. At arbitration the Arbitrator
framed the issues as whether the grievance was arbitrable and whether
the Agency violated the collective bargaining agreement by failing to
promote the grievants.
On the issue of arbitrability, the Arbitrator ruled that the
grievance was arbitrable. Contrary to the contention of the Agency, she
determined that the grievance only concerned whether the Agency properly
refused to promote the grievants and did not concern the classification
of any position.
On the merits issue, the Arbitrator ruled that the Agency's failure
and refusal to promote the grievants on their eligibility date was
arbitrary and capricious and in violation of Article 21, Sections 3c and
3d of the collective bargaining agreement. The Arbitrator further ruled
that but for the arbitrary and capricious actions of the grievants'
supervisors, which were in violation of the collective bargaining
agreement, the grievants would have been promoted to GS-11 on July 24,
1983. Accordingly, the Arbitrator ordered the grievants promoted to
GS-11 retroactive to July 24, 1983, with backpay.
In her opinion accompanying the award, the Arbitrator discussed her
reasoning in concluding that the failure and refusal to promote the
grievants was arbitrary and capricious. Primarily, the Arbitrator
rejected the Agency's position that the grievants were not promoted
because sufficient work at the GS-11 level was not available. Instead,
she found that in not promoting the grievants, their supervisors were
motivated by "subjective and unsupported fears about the general
'climate' for promotions." In addition, she separately and independently
found that even if the grievants' supervisors were motivated by a
good-faith belief that sufficient work was not available, their failure
to promote the grievants was still arbitrary. She concluded that the
proper procedure in such circumstances is not to deny individual
promotions but to challenge the career ladder itself.
III. FIRST EXCEPTION
A. Contentions
The Agency contends that the award is deficient by finding the
grievance to be arbitrable. The Agency maintains that the grievance
concerns the classification of a position within the meaning of the
exclusion of section 7121(c)(5) of the Statute and a corresponding
exclusion of the collective bargaining agreement.
B. Analysis and conclusions
The Agency fails to establish that the award is contrary to section
7121(c)(5) and the collective bargaining agreement. We have
specifically held that a grievance and an award which pertain to whether
a grievant is entitled to a career-ladder promotion do not concern the
classification of any position within the meaning of section 7121(c)(5).
American Federation of Government Employees, Local 3258 and U.S.
Department of Housing and Urban Development, 21 FLRA No. 56 (1986). In
this case, we similarly find contrary to the contention of the Agency
that the grievance and award pertain to whether the Agency properly
refused to promote the grievants and do not directly concern the
classification of any positions.
IV. SECOND EXCEPTION
A. Contentions
The Agency contends that the award is contrary to the Back Pay Act, 5
U.S.C. Section 5596. Specifically, the Agency argues that the
Arbitrator failed to make all the findings necessary to an award of
backpay and that some of her findings are not supportable.
B. Analysis and conclusions
The Agency fails to establish that the award of a retroactive
promotion and backpay is contrary to the Back Pay Act. With respect to
awards of backpay, the Authority has specifically stated that in order
for an award of backpay to be authorized under the Back Pay Act, the
arbitrator must find that an agency personnel action with respect to the
grievant was unjustified or unwarranted; that such unjustified or
unwarranted personnel action directly resulted in the withdrawal or
reduction of the grievant's pay, allowances, or differentials; and that
but for such action, the grievant otherwise would not have suffered such
withdrawal or reduction of pay, allowances, or differentials. For
example, U.S. Army Aberdeen Proving Ground and Local 2424, International
Association of Machinists and Aerospace Workers, AFL-CIO, 19 FLRA No. 35
(1985). We find contrary to the contention of the Agency that the
Arbitrator made all the findings necessary to her award of a retroactive
promotion and backpay. She specifically found that by failing to
promote the grievants on their eligibility date, the Agency violated
Article 21 of the collective bargaining agreement and that but for this
violation, the grievants would have been promoted to GS-11 on July 24,
1983. Furthermore, the Agency's contention that these findings are not
supportable constitutes nothing more than disagreement with the
Arbitrator's interpretation and application of the collective bargaining
agreement and with her findings of fact and her reasoning and
conclusions. Such disagreement provides no basis for finding the award
deficient. For example, U.S. Department of Health and Human Services,
Social Security Administration and American Federation of Government
Employees, AFL-CIO, 22 FLRA No. 16 (1986). Consequently, no basis is
provided for finding the award contrary to the Back Pay Act.
V. THIRD EXCEPTION
A. Contentions
The Agency contends that the award is either contrary to the
Classification Act, 5 U.S.C. Section 5101 et seq., and classification
regulations, FPM chapter 511, or is contrary to section 7106(a) of the
Statute. The Agency explains that the Classification Act and the FPM
require as part of any promotion recommendation a certification from the
supervisor that the position description of the position to which the
recommended employee is to be promoted accurately reflects the duties
that will be assigned the employee. In this case, the Agency maintains
that the required certification cannot be made because there is no work
at the GS-11 level to be performed. The Agency asserts that the
certification can only be made if management creates enough GS-11 work
for the grievants to perform. Thus, the Agency aruges that by ordering
the grievants promoted, the award must violate the Classification Act
and FPM chapter 511 or management's rights under section 7106(a). The
Agency asserts that as ordered, the award violates the Act and the FPM
because it would require the grievant's supervisor to falsify the
certification that the position description of the GS-11 position
accurately reflects the duties to be performed by the grievants. The
Agency asserts alternatively that to create GS-11 duties to implement
the award consistent with the Act and the FPM would violate numerous
management rights under section 7106(a). Accordingly, the Agency
concludes that the award must be found deficient as contrary to law.
B. Analysis and conclusions
The Agency fails to establish that the award is contrary to law or
regulation. The Agency's exception that the award must be found
contrary to classification law and regulation or section 7106(a) is
necessarily founded on the premise that there was a lack of work at the
GS-11 level. The Arbitrator specifically addressed in her award the
issue of a lack of work at the GS-11 level, but she made separate and
alternative findings. On the one hand, she found that even if the
grievants' supervisors had a good-faith belief as to the lack of work,
their failure to promote the grievant was still arbitrary. We conclude
that any reliance on this finding as permitting the Agency to argue
before the Authority that there was in fact a lack of work at the GS-11
level is misplaced. This finding by the Arbitrator constituted a
separate and independent basis for her conclusion that the failure to
promote the grievants was arbitrary which assumed a good-faith belief by
the grievants' supervisors of a lack of work. But on the other hand and
primarily, the Arbitrator separately found that there was not any lack
of work at the GS-11 level and that the supervisors were instead
motivated by subjective and unsupported fears about the climate for
promotions. Thus, we find that this exception, which is based on the
premise that there was a lack of work at the GS-11 level, constitutes
disagreement with the Arbitrator's findings of fact and her reasoning
and conclusions which, as we recognized earlier, provides no basis for
finding the award deficient.
VI. FOURTH EXCEPTION
A. Contentions
The Agency contends that the award does not draw its essence from the
collective bargaining agreement. Specifically, the Agency argues that
the award is deficient because the Arbitrator erroneously interpreted
the parties' collective bargaining agreement to find that a
career-ladder promotion is a ministerial act under the agreement and
that the availability of work at the next higher-grade level is not a
requirement under the agreement for a career-ladder promotion.
B. Analysis and conclusions
The Agency fails to establish that the award does not draw its
essence from the collective bargaining agreement. The exception clearly
constitutes nothing more than disagreement with the Arbitrator's
interpretation and application of the parties' collective bargaining
agreement and her reasoning and conclusions in reaching her award. As
we have repeatedly held, such disagreement provides no basis for finding
an award deficient.
VII. FIFTH EXCEPTION
A. Contentions
The Agency contends that the award is based on a nonfact.
Specifically, the Agency argues that the Arbitrator's findings are
premised on a false assumption. The Agency maintains that the
Arbitrator's finding that the grievants' supervisors promoted other GS-9
employees in the career ladder both shortly before and after the
grievants became eligible for promotion is erroneous and that therefore
the award is deficient.
B. Analysis and conclusions
The Agency fails to establish that the award is deficient under the
Statute. We will find an award deficient under the Statute when it is
demonstrated that the central fact underlying the award is concededly
erroneous and in effect is a gross mistake of fact but for which a
different result would have been reached. For example, U.S. Army
Missile Command, Redstone Arsenal, Alabama and Local 1858, American
Federation of Government Employees, AFL-CIO, 18 FLRA No. 50 (1985). In
order for an award to be found deficient on this ground, it must be
established that the alleged "nonfact" involved a fact that was
objectively ascertainable, was the central fact that was objectively
ascertainable, was the central fact underlying the award, and was
concededly erroneous and that but for the arbitrator's misapprehension,
the arbitrator would have reached a different result. For example,
International Brotherhood of Electrical Workers and United States Army
Support Command, Hawaii, 14 FLRA 680 (1984). Without fully addressing
the statements of the Arbitrator cited by the Agency in terms of this
ground, it is apparent that the Arbitrator based her conclusion that the
grievants' supervisors acted arbitrarily on findings more extensive than
the finding cited by the Agency. Primarily, she found that the
supervisors were motivated by fears about the general climate for
promotions and that such fears were subjective and unsupported. Thus,
it is not established, even if the cited statement of the Arbitrator
were concededly erroneous, that this "is the fact on which the award is
based" and that "but for the arbitrator's misapprehension, the
arbitrator would have reached a different result." See Army Support
Command, Hawaii, 14 FLRA at 681 (quoting with original emphasis United
States Army Missile Materiel Readiness Command (USAMIRCOM) and American
Federation of Government Employees, Local 1858, AFL-CIO, 2 FLRA 432, 438
(1980) ). Accordingly, no basis is provided for finding the award
deficient.
VIII. DECISION
For these reasons the Agency's exceptions are denied.
Issued, Washington, D.C., December 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY