13:0251(43)AR - AFGE Local 2855 and Army, Military Traffic Management Command, Eastern Area -- 1983 FLRAdec AR



[ v13 p251 ]
13:0251(43)AR
The decision of the Authority follows:


 13 FLRA No. 43
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2855
 Union
 
 and
 
 UNITED STATES ARMY,
 MILITARY TRAFFIC MANAGEMENT
 COMMAND, EASTERN AREA
 Activity
 
                                            Case No. O-AR-257
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Daniel House filed by the Agency 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 parties submitted to arbitration an issue of whether it was
 established that the two grievants were denied promotions because of
 management's failure to comply with merit promotion procedures.
 Although each of the grievants was informed within the hour prior to the
 arbitration hearing that they were being promoted, the Arbitrator
 expressly held that the Union had established that the denial of earlier
 promotions to the grievants was the result of management's failure to
 fairly administer the merit promotion procedures as specifically
 required by the parties' collective bargaining agreement and applicable
 regulation.  As his award in this respect, the Arbitrator ordered that
 the subsequent promotion of one of the grievants be made retroactive
 with backpay to June 2, 1980, and that the subsequent promotion of the
 other grievant be made retroactive with backpay to October 20, 1980.
 
    In its first exception the Agency contends that the award of
 retroactive promotions and backpay is contrary to law, regulation, and
 the negotiated agreement.  Specifically, the Agency acknowledges that
 under the Back Pay Act, 5 U.S.C. 5596, the award of a retroactive
 promotion and backpay is authorized when it is found that but for the
 unwarranted action the aggrieved employee would have been selected for
 promotion.  However, in terms of this case, the Agency argues that the
 Arbitrator's finding of the necessary causal relationship is not
 supported by the evidence.
 
    The Authority concludes that this exception provides no basis for
 finding the award deficient.  As noted, the Arbitrator specifically
 found that the Activity's failure to fairly administer the merit
 promotion procedures as required by the agreement and regulation
 resulted in the denial of earlier promotions to the grievants that they
 otherwise would have received.  The Agency's contention that this
 finding is not supported by the evidence constitutes nothing more than
 disagreement with the Arbitrator's evaluation of the evidence and
 testimony presented and does not constitute a basis for setting aside
 the award.  Accordingly, this exception is denied.  See, e.g., American
 Federation of Government Employees, AFL-CIO, Local 2094 and Veterans
 Administration Medical Center, New York City, New York, 12 FLRA No. 44
 (1983);  Council of District Office Locals, American Federation of
 Government Employees, San Francisco Region, AFL-CIO and Office of
 Program Operations, Field Operations, Social Security Administration,
 San Francisco Region, 5 FLRA No. 100 (1981).
 
    In its second exception the Agency contends that the significance
 attached by the Arbitrator to the rating of the grievants as best
 qualified is contrary to law and regulation.  The Authority concludes
 that the Agency fails to establish that the award, in finding that the
 denial of promotions to the grievants was the result of management's
 failure to fairly administer the merit promotion procedures as required,
 is contrary to law or regulation.  Instead, this exception constitutes
 disagreement with the Arbitrator's reasoning and conclusions in reaching
 that award.  It is well established that such disagreement provides no
 basis for finding the award deficient and this exception is accordingly
 denied.  E.g., Southeastern Program Service Center, Social Security
 Administration and American Federation of Government Employees, AFL-CIO,
 Local 2206, 7 FLRA No. 61 (1981).
 
    In its third exception the Agency contends that the Arbitrator's
 finding as to the basis for the nonselections of the grievants is
 contrary to the evidence submitted.  Specifically, the Agency argues
 that the Arbitrator failed to consider reasons stated for the
 nonselections of the grievants in addition to their alleged failure to
 meet production quotas.
 
    The Authority concludes that the Agency fails to establish in this
 exception that the award is deficient.  Contrary to the assertion of the
 Agency, the Arbitrator expressly acknowledged that there were other
 general statements of record as to the nonselections of the grievants.
 However, the Arbitrator judged the failure of the grievants to meet
 production quotas to be the only explicit basis relied upon and
 persistently emphasized.  In asserting to the contrary, the Agency is
 merely disagreeing with the Arbitrator's evaluation of the evidence.
 Accordingly, this exception is denied because such disagreement provides
 no basis for finding the award deficient.  E.g., Veterans Administration
 and American Federation of Government Employees, Local 997, 8 FLRA No.
 49 (1982).
 
    In its fourth exception the Agency essentially contends that the
 Arbitrator by judging the reasonableness of the production standards
 which the grievants allegedly failed to meet exceeded his authority and
 the award is contrary to management's right under section 7106(a)(2)(A)
 and (B) of the Statute to determine the content of performance
 standards.  The Authority concludes that this exception provides no
 basis for finding the award deficient.  The Agency in this respect fails
 to establish in what manner the Arbitrator exceeded his authority by
 resolving precisely the issue submitted.  Likewise, the Agency fails to
 establish in what manner the Arbitrator's resolution of the grievance
 submitted denies management its right to determine the content of its
 performance appraisal standards or requires it to change its standards,
 and consequently no basis is provided for finding the award contrary to
 section 7106(a)(2)(A) or (B) of the Statute.  See Social Security
 Administration and American Federation of Government Employees, SSA,
 Local 1923, AFL-CIO, 7 FLRA No. 82 (1982).  Accordingly, this exception
 is denied.
 
    In its fifth exception the Agency contends that the award is
 deficient with respect to the ordered promotion of grievant Johnson
 retroactive to June 2, 1980.  The Agency documents that the effective
 date of promotion under the applicable vacancy announcement was July 27,
 1980, and not June 2, and maintains that the award must be modified
 accordingly.  The Authority agrees.
 
    As