33:0081(10)AR - - HUD, Greensboro, NC and AFGE Local 3409 - - 1988 FLRAdec AR - - v33 p81



[ v33 p81 ]
33:0081(10)AR
The decision of the Authority follows:


33 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

GREENSBORO, NORTH CAROLINA

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3409

0-AR-1537

DECISION

October 14, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Robert W. Foster. The Arbitrator found that the grievant was not entitled to a career ladder promotion and that the Agency did not violate the parties' collective bargaining agreement when it declined to promote her.

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 Agency filed an opposition to the Union's exceptions.

We find that the Union's exceptions constitute only disagreement with the Arbitrator's interpretation and application of the parties' agreement, reasoning, and conclusions and provide no basis for finding the award deficient. Therefore, the exceptions are denied.

II. Background and Arbitrator's Award

The grievant in this case is a Multi-Family Loan Specialist, GS-11, who has been assigned to that position since her original hiring in 1978. Her position is designated a career ladder position with promotion potential to GS-12. Since 1978, six other employees in similar positions hired after the grievant have received career ladder promotions to GS-12. The grievant has not been promoted. The grievant filed a grievance claiming that she was wrongfully denied a career ladder promotion to GS-12 when two of her coworkers were promoted to that level in August 1985.

The grievance was denied by the Agency on the ground that the grievant did not meet the requirements of Article 13, Section 13.14 of the collective bargaining agreement. Article 13, Section 13.14 provides:

Management will make prompt determinations regarding career-ladder promotions of their employees. A career ladder promotion is dependent on:

(1) The employee's demonstration of the ability to perform the duties of the next higher grade to the satisfaction of his/her supervisor. A copy of the promotion criteria will be given to an employee as he/she enters each level of a career ladder.

(2) The availability of enough work at the next higher grade.

(3) Meeting the minimum qualification and time-in-grade requirements.

Award at 2.

The grievance was submitted to arbitration on the issue of whether the Agency violated the agreement by not promoting the grievant to GS-12 and, if so, what was the appropriate remedy.

The Arbitrator noted that the parties agreed that the grievant had met the minimum qualification and time-in-grade requirements of the agreement. He also noted the Agency's contention that there was insufficient workload to justify the grievant's promotion because after the two other employees were promoted, a third GS-12 was not needed. The Arbitrator stated that the Agency's position "begs the very question . . . whether the Grievant should have been one of the two [employees] so promoted to that level." Award at 9. He identified the "critical issue" on which the grievance must turn as whether the grievant had demonstrated the ability to perform the duties of the next higher grade to the satisfaction of her supervisor. Id.

The Arbitrator found that the grievant did not satisfy her supervisors that she was qualified to perform the duties of a GS-12. He noted that some of their comments concerning the grievant's performance tended to be "nit-picking." Award at 10. He concluded that her satisfactory performance ratings provided a more accurate reflection of her performance and abilities as a GS-11 "than the after-the-fact testimony of the witnesses that her work was something short of adequate in supporting the decision not to promote the Grievant." Id. However, he also found that the outstanding performance ratings given to the two employees who were promoted indicated that those employees handled more complex projects than the grievant and that they "demonstrated a higher level of proficiency in the manner in which they handled the more complex assignments that separate the normal work of the GS-11 and GS-12 levels under the applicable OPM [Office of Personnel Management] classification standards." Award at 11.

The Union contended to the Arbitrator that 5 C.F.R. § 335.104(b), a 1983 regulation which was later rescinded (see 51 Fed. Reg. 8411 (1986)) and which gave priority for career ladder promotions to employees with higher ratings, had never been implemented at the Agency because it was barred by the agreement. The Union contended that the Agency violated the grievant's rights by promoting two GS-11 employees junior to her, when her performance evaluations were fully satisfactory, including her handling of "troubled" or complex projects. Award at 7. The Arbitrator agreed that the standard in 5 C.F.R. § 335.104(b) never applied to the parties and indicated that seniority may be an appropriate consideration for promotion. Award at 11. However, he stated that "a careful reading of the OPM statement makes clear that performance in the employee's position is at least as important as seniority in evaluating employees for career ladder promotions." Id.

The Arbitrator ruled that although career ladder promotions were excluded from competitive placement procedures, management was not precluded "from comparing employees' performances in the determination of which one has demonstrated ability to perform the duties of the next highest grade." Award at 12. Based on the unanimous opinion of the two supervisors and the division director who testified that the grievant was not performing GS-12 work in a satisfactory manner and that the promoted employees did perform in that manner, the Arbitrator concluded that the grievant and the Union failed to prove that the grievant should have been promoted under Section 13.14(1) of the agreement. He denied the grievance.

III. Positions of the Parties

A. Exceptions

The Union alleges that the Arbitrator's award violates Federal Personnel Manual (FPM) Supplement 335.1 because the award does not require that the grievant be considered for promotion and because the award establishes inappropriate areas of consideration for promotion at the GS-12 level. The Union alleges that the Arbitrator exceeded his authority by permitting the comparison of employees' performance ratings as one of the criteria for determining career ladder promotions and that the Arbitrator improperly added the criterion of performance evaluation comparison. Further, the Union contends that the Arbitrator failed to provide any rights for future promotion consideration to the grievant.

The Union also alleges that the award does not draw its essence from the collective bargaining agreement because the Arbitrator failed to consider Section 4.05 of the agreement. According to the Union, that section provides that the successful performance of assigned duties shall not be the reason for delay or denial of a within-grade increase or career ladder promotion. The Union contends that the Arbitrator improperly compared the grievant's successful performance rating with the outstanding ratings of the two employees who were promoted. The Union asserts that the award is contradictory because the Arbitrator stated that he understood that 5 C.F.R. § 335.104(b) did not apply to the parties, yet he referred to that regulation as a basis for not precluding the comparison of performance ratings in making career ladder promotion decisions.

The Union further alleges that the award is based on a nonfact because the Arbitrator erroneously stated that there had not been sufficient work available at the GS-12 level for any promotions since the August 1985 promotions. The Union also contends that the award is contradictory because the Arbitrator found that the grievant had performed successfully at the GS-11 level and yet did not find that she would have performed successfully at the GS-12 level, although the critical elements for the two positions are identical.

B. Opposition

The Agency contends that the Union has failed to show that the award is contrary to law, rule, or regulation; that the Arbitrator exceeded his authority; that the award fails to draw its essence from the parties' collective bargaining agreement; or that the award is based on a nonfact. The Agency contends that the Union is merely disagreeing with the Arbitrator's factual findings and reasoning. The Agency contends that the grievant was considered for career ladder promotion but was properly denied the promotion because she failed to meet the requirements of Section 13.14 of the agreement.

The Agency maintains that the Arbitrator appropriately considered the grievant's performance rating to determine whether or not she met those requirements. The Agency denies that the grievant was entitled to a career ladder promotion on the basis of seniority alone. Further, the Agency maintains that although the critical elements are the same for both the GS-11 and the GS-12 positions, there are primary differences in the two positions based on the nature of the loans involved and the nature of supervision received. The Agency contends that the Arbitrator properly found, based on the testimony of the grievant's supervisors, that the grievant did not demonstrate the ability to perform the work of a GS-12 Loan Specialist.

IV. Discussion

A. The Award is Not Contrary to the FPM

We conclude that the award is not contrary to FPM Supplement 335.1. The Arbitrator made a determination that the grievant did not meet the career ladder promotion requirements which the parties had incorporated into their agreement. Specifically, the Arbitrator found, based on the evidence and testimony presented, that the grievant did not demonstrate the ability to perform the duties of the next higher grade to the satisfaction of her supervisors.

Under applicable FPM requirements, a career ladder promotion is a ministerial act implementing an agency's earlier decision to place an employee in a career ladder position with the intention of preparing the employee for successful noncompetitive promotions when the conditions prescribed by agreement or regulation are met. National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 822 (1987). Therefore, when an arbitrator finds that the previously established conditions for a career ladder promotion have been met, the ministerial act of promotion cannot be withheld without a valid and lawful reason. See National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303, 1310 (1987), where the Authority denied exceptions to an award in which the arbitrator found that the conditions for a career ladder promotion had been met.

In the instant case, the Arbitrator determined that one of the conditions prescribed by the agreement--demonstration of the ability to perform the duties of the next higher grade to the satisfaction of the grievant's supervisor--was not met and, therefore, the grievant was not entitled to promotion. We agree with the Arbitrator that in the absence of the grievant's fulfilling all the requirements of the negotiated career ladder program, the grievant was not entitled to a promotion. Therefore, this exception provides no basis for finding the award deficient.

B. The Union's Remaining Exceptions Provide No Basis for Finding the Award Deficient

The Union has also alleged that the award is deficient because: (1) the Arbitrator exceeded his authority; (2) the award does not draw its essence from the collective bargaining agreement; (3) the Arbitrator failed to consider certain evidence; (4) the award is based on a nonfact; and (5) the award is contradictory.

We have considered these exceptions and conclude that the Union has failed to establish in these exceptions 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 relations cases.

Rather, the