33:0308(38)AR - - HUD and AFGE Local 1568 - - 1988 FLRAdec AR - - v33 p308



[ v33 p308 ]
33:0308(38)AR
The decision of the Authority follows:


33 FLRA No. 38

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1568

0-AR-1539

DECISION

October 25, 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 Donald P. Crane. The Arbitrator found that management had violated the parties' collective bargaining agreement by failing to grant the grievant a career-ladder promotion to GS-12. The Arbitrator directed that the grievant be promoted to GS-12 with backpay retroactive to the date the grievance was filed.

The Agency 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 Union filed an opposition to the Agency's exceptions.

We conclude that the Agency fails to establish that the award is deficient because (1) the award is based on "non-facts," (2) the award is contrary to law and regulation pertaining to the classification of positions, or (3) the Arbitrator exceeded his authority. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In March 1987, the grievant, a GS-11 housing management specialist, filed a grievance disputing management's failure to grant him a career-ladder promotion to the full performance level of GS-12. The grievance was submitted to arbitration on the stipulated issue of whether management violated specified provisions of the parties' collective bargaining agreement by failing to promote the grievant to GS-12.

The Arbitrator noted that Section 13.14 of the parties' agreement sets forth the requirements of a career-ladder promotion. Section 13.14 provides, in pertinent part:

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. . . .

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

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

The Arbitrator acknowledged that there was no dispute that the grievant met the minimum qualification and time-in-grade requirements. The dispute was over the other two requirements: Whether there was enough work available at the GS-12 level and whether the grievant had demonstrated the ability to perform the duties of the GS-12 housing management specialist position.

On the issue of the availability of work, the Arbitrator found as follows:

Computer printouts of positions and vacancies in the General Management Branch (Union Exhibit 1) reveal that there have been from four to seven Housing Management Specialists GS-1173-12 in the Branch during the period 1986-1987. For example, on June 12, 1986, there were six GS-12 Housing Management Specialists; there were six on October 2, 1986; and there were five on April 16, 1987. On that same date, there were two vacancies at the GS-12 level. Likewise, the printout dated October 15, 1987 reveals one GS-12 Housing Management Specialist vacancy.

Arbitrator's Award at 6. On the basis of this evidence, the Arbitrator was "convinced" that "there was enough GS-12 work to permit [the grievant] to be promoted." Id.

The Arbitrator also found that the grievant had met the other requirement: He had demonstrated the ability to perform the duties of the GS-12 housing management specialist position. "Key" to the Arbitrator's finding was the recommendation of the grievant's supervisor in 1979 that the grievant be promoted to GS-12. Id. at 7. Although the grievant was not promoted because of a lack of work at the GS-12 level, the Arbitrator noted that the grievant was "considered promotable" and that the Arbitrator was not persuaded that 8 years later he no longer demonstrated the ability to perform the duties of GS-12 to his supervisor's satisfaction. Id. at 7-8. The Arbitrator noted that the grievant had "consistently received a 'satisfactory' or higher rating on each critical element of his Performance Ratings since 1978." Id. at 8.

The Arbitrator also concluded that the grievant "perform[ed] the work of a GS-12 Housing Management Specialist." Id. at 6. The Arbitrator stated that the housing management division director testified that "the distinguishing characteristics of the GS-12 Housing Management Specialists are working with larger and more complex housing units." Id. The Arbitrator stated that the grievant was responsible for the Albany, Georgia, Housing Authority and that the "record reveals that Albany has 2,058 units which makes it a 'large' authority by HUD standards." Id. at 7.

The Arbitrator recognized that the grievant's supervisor had been critical of the grievant's performance. However, the Arbitrator questioned the seriousness and fairness of these claimed "performance deficiencies." Id. at 8. The Arbitrator noted that deficiencies pointed out to the grievant in 1986 were not serious enough to affect his "satisfactory" performance rating. The Arbitrator also considered the criticisms after the grievant filed his grievance to be "highly suspect." Id. He concluded that it was "patently unfair" for management to raise these matters: "Either Management should have been more conscientious and called [the performance deficiencies] to [the grievant's] attention before he filed the grievance and/or the specifics should have been recorded on his Performance Ratings before 1986." Id.

For these reasons, the Arbitrator ruled that management had violated Section 13.14 of the parties' collective bargaining agreement by not promoting the grievant. As a remedy, the Arbitrator ordered that the grievant "be promoted to GS-1173-12 Housing Management Specialist effective March 5, 1987," with backpay. Id. at 9.

III. First Exception

A. Positions of the Parties

The Agency contends that the award is deficient because the award is based on a "non-fact." The Agency contends that the Arbitrator based his award on the erroneous finding that the grievant was responsible for a "large" housing authority.

The Agency maintains that the Albany, Georgia, Housing Authority for which the grievant was responsible is not a large housing authority. The Agency argues that there was no basis to conclude that the Albany Housing Authority is one single authority, as found by the Arbitrator. The Agency argues that the Albany Housing Authority consists of three separate housing authorities and that two of the authorities are handled by other employees. Consequently, the Agency asserts that the award depends on a "non-fact" and is deficient.

The Union disputes the Agency's contentions. The Union maintains that it was uncontested at the time of the hearing that the grievant handled the Albany Housing Authority, which managed a total of 2,058 units. Consequently, the Union argues that the award is not based on a "non-fact."

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is deficient because the award is based on a "non-fact."

We will find an award deficient under the Statute when it is demonstrated that the central fact underlying the award is concededly erroneous and constitutes a gross mistake of fact but for which a different result would have been reached. For example, U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA 435 (1986) (DOL). In order for an award to be found deficient on this ground, it must be established that the alleged "non-fact" involved a fact that was objectively ascertainable, was the central fact underlying the award, was concededly erroneous, and that but for the arbitrator's erroneous finding, the arbitrator would have reached a different result. Id. at 440.

It is apparent that the Arbitrator based his conclusion that the grievant had demonstrated the ability to perform the duties of the GS-12 housing management specialist position on findings more extensive than the finding cited by the Agency. The Arbitrator specified in his award that "[k]ey" to his finding was the recommendation of the grievant's supervisor in 1979 that the grievant be promoted to GS-12. Therefore, it is not established that the statement of the Arbitrator--that the grievant was responsible for a "large" housing authority--"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 International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680, 681 (1984) (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) (U.S. Army Missile Materiel Readiness Command)). Accordingly, this exception provides no basis for finding the award deficient.

IV. Second Exception

A. Positions of the Parties

The Agency contends that the award is deficient because the award is based on the Arbitrator's finding that there was enough GS-12 work for the grievant to be promoted. The Agency contends that this finding constitutes a "non-fact."

The Agency argues that the vacancies shown on the computer printout on which the Arbitrator relied were listed in error. The Agency asserts that contrary to the computer printout and the finding of the Arbitrator, there was no vacancy in a GS-12 housing management specialist position "throughout the period the arbitrator referred to." Exceptions at 11. The Agency has submitted an affidavit of the director of the personnel division of the Agency's Atlanta Regional Office which states that "[t]here was no vacancy authorized to be filled for a Housing Management Specialist, GS-1173-12, in the Atlanta Regional Office on March 5, 1987." The Agency states that "[w]hile the arbitrator's misinterpretation is perhaps understandable, there is nevertheless no vacancy." Id.

The Agency also contends that to the extent that the award requires the grievant's promotion even though there is no work at the GS-12 level, the award violates law and regulation pertaining to the classification of positions.

The Union disputes that the computer printout on which the Arbitrator relied was incorrect. The Union states that the printout was one of the periodic listings of positions and vacancies prepared by management and routinely provided to the Union. The Union maintains that any discrepancies on the printout are routinely corrected by management. The Union argues that the printout relied on by the Arbitrator had been corrected by management and was not objected to by management when submitted to the Arbitrator.

B. Analysis and Conclusions

When the Authority recognized that Federal courts in private-sector labor relations cases will find an award deficient when the award is based on a "non-fact," the Authority noted the holding of the court in Electronics Corporation of America v. International Union of Electrical Workers, Local 272, 492 F.2d 1255, 1257 (1st Cir. 1974):

[W]here the "fact" underlying an arbitrator's decision is concededly a non-fact and where the parties cannot fairly be charged with the misapprehension, the award cannot stand.

U.S. Army Missile Materiel Readiness Command, 2 FLRA 432, 438 (emphasis in original). Consequently, the Authority held that in order for an award to be found deficient, it must be established that "the parties [were not] responsible for the arbitrator's misapprehension." Id.

In this case, the Agency does not dispute that the Arbitrator did not accurately state the information contained in the printout. Instead, the Agency now claims that the information contained in the printout was incorrect. However, the information contained in the printout was information provided by management, corrected by management before the information was submitted to the Arbitrator, and not objected to by management when submitted to the Arbitrator. Consequently, we find that at the arbitration, management was in part responsible for the disputed finding of the Arbitrator. Therefore, we conclude that the Agency fails to establish that "the parties [were not] responsible for the arbitrator's misapprehension." U.S. Army Missile Materiel Readiness Command, 2 FLRA at 438. Accordingly, the Agency's exception provides no basis for finding the award deficient in this respect.

The Agency's contention that the award is contrary to classification law and regulation is based on the premise that there was a lack of work available at the GS-12 level. This contention provides no basis for finding the award deficient. This contention constitutes nothing more than disagreement with the Arbitrator's factual finding to the contrary which has not been found deficient. See DOL, 24 FLRA at 438-39 (an agency claim that an award granting career-ladder promotions to GS-11 was contrary to classification law and regulation because there was a lack of work at the GS-11 level was denied because the exception constituted nothing more than disagreement with the arbitrator's factual finding to the contrary).

V. Third Exception

A. Positions of the Parties

The Agency contends that the Arbitrator exceeded his authority. The Agency maintains that the Arbi