35:0241(28)AR - - FDIC and NTEU - - 1990 FLRAdec AR - - v35 p241



[ v35 p241 ]
35:0241(28)AR
The decision of the Authority follows:


35 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL DEPOSIT INSURANCE CORPORATION

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-1701

DECISION

March 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John C. Fletcher filed by the Federal Deposit Insurance Corporation (FDIC or 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 National Treasury Employees Union (NTEU or the Union) filed an opposition to the Agency's exceptions.

In his award, the Arbitrator held that the grievant was not selected for promotion to a Grade 13 Bank Examiner position because of union animus. As a remedy, the Arbitrator ordered that the grievant be retroactively promoted to the Grade 13 position with backpay. For the following reasons, we find that the Agency's exceptions fail to show that the Arbitrator's award is deficient. The exceptions are, therefore, denied.

II. Background and Arbitrator's Award

The grievant in this case is a General Grade (GG) 12 Bank Examiner who has held that position since 1973. He has been employed by the Agency since 1969. The grievant is also a union representative who has been active in union affairs. In 1987, he applied for an advertised Grade 13 Bank Examiner position. The selecting official, who was the Regional Director for the Chicago Office, selected the only candidate other than the grievant on the list of eligible candidates referred to him. The selected candidate had been with the Agency since 1980 and had been a Grade 12 Bank Examiner since 1985.

The Union filed a grievance on behalf of the grievant in which it alleged, in pertinent part, that the grievant's protected union activity was a factor in his nonselection for the Grade 13 position. The grievance was submitted to arbitration on the following stipulated issue:

Whether the FDIC, Chicago Region, discriminated against [the grievant] on the basis of anti-union animus in the selection for a Grade 13 Bank Examiner position, pursuant to Vacancy Announcement 87-F254, and if so, what should be the remedy?

Award at 2-3.

The Arbitrator found that the evidence demonstrated that the grievant had a long history of protected union activity within the Agency and that management was aware of that activity. The Arbitrator noted the fact that a former Regional Director had attempted to discipline the grievant and that another arbitrator had found that discipline to be improper on the basis of anti-union bias. The former Regional Director had since become the Director of the Division of Bank Supervision (DBS) and was the supervisor of the current Regional Director, who was the selecting official in this case.

The Arbitrator found that the current Regional Director was aware of the grievant's union activities. The Arbitrator noted that 2 months before the posting of the position announcement, the Regional Director furnished the grievant with a copy of a letter to the Union president concerning the withdrawal of an unfair labor practice charge, "even though, at the time, [the grievant] was just one member of a six member negotiating team." Award at 7. The Arbitrator also noted the Regional Director's concern over the effect on labor relations of an "'attack' [which was] contained in a union newsletter in which [the grievant] was identified as one of the players for NTEU." Id. The Arbitrator stated that "[f]rom this an inference may be drawn that the Regional Director felt that members of NTEU's negotiating team, [the grievant] among them, were not conducting their affairs in a professional manner." Id. at 7-8.

The Arbitrator credited the grievant's testimony concerning remarks by the selecting official in a private meeting held approximately a year before the position was posted. The grievant "testified that at this time he asked the Regional Director why he had not been promoted and was told that the former Director, who's [sic] April 1985 reprimand of [the grievant] was not upheld in arbitration, and who was now the Regional Director's immediate superior, would never approve it." Award at 8. The Arbitrator rejected the Regional Director's denial of the accuracy of that statement and concluded that "after observing the demeanor of both witnesses and consideration of the totality of their entire testimony, including a major discrepancy between the testimony of the Regional Director and his [Field Office Supervisor], which is reviewed below, we credit [the grievant's] version to be correct." Id. at 9.

The Arbitrator also refused to credit the Regional Director's assertion that he was "aloof and apart from day-to-day activity involving NTEU." Id. Rather, the Arbitrator pointed out facts which indicated to him that the Regional Director "was not as far distanced from NTEU activity as he would like to have believed." Id. at 10. The Arbitrator noted the Regional Director's testimony that "he was aware that 'bad blood' existed between his predecessor and [the grievant]." Id. The Arbitrator stated that "the unaltered fact remains that he was aware of the situation, its underlying base was [the grievant's] union activity and that the former Regional Director was now his immediate superior." Id.

The Arbitrator stated that "the initial choice would be that of the Selecting Official, but the selection, as a minimum, required the Director of DBS to sign off on the choice, even if it was only pro forma. From this, and other facts, I draw the inference that a reason the Regional Director did not select [the grievant] for the vacancy was because he knew that his superior, the Director of DBS, would not want [the grievant] promoted." Id. at 10-11. The Arbitrator concluded that "union animus was a motivating factor" in the grievant's not being promoted. Id. at 11.

In considering testimony concerning the Agency's reasons for selecting the other applicant over the grievant, the Arbitrator found that the Regional Director relied on material concerning the merits of the two candidates that was not contained in the merit promotion packet. Specifically, the Arbitrator noted that the Regional Director testified that he relied on the recommendations of the Field Office Supervisor (FOS), but he found that the Regional Director's testimony was "not supported by the testimony of the FOS." Award at 12-13. Regarding the testimony of the Field Office Supervisor the Arbitrator stated:

Notable by its absence are any remarks that the FOS indicated that [the other candidate] was solidly endorsed for a 13 or that he was ready for a 13 or that he was qualified as well as any other 13 in the region. . . . Accordingly, we are compelled to disregard the Director's testimony that [the other candidate's] first line supervisor gave him a solid endorsement for a 13.

Id. at 13.

The Arbitrator also ruled that the Regional Director gave undue weight to recent performance appraisals in making his selection and that he did not properly consider the other evaluation factors in Subchapter 5.2.D of the Agency's merit promotion plan--experience and education, awards and training, and additional information from candidates or supervisors which are made a matter of record. The Arbitrator stated that "the information obtained from the candidates' supervisor, and stated in sworn testimony to be used as additional evaluation information, was not made a matter of record and was discarded or destroyed somewhere in the process." Award at 14. The Arbitrator found that the grievant would have scored highly in the other evaluation areas of experience, awards, training and self-development. The Arbitrator also found that the Deputy Regional Director had recommended the other candidate over the grievant because he felt that the other candidate "had a unique style of writing which was more in depth." Id. at 16.

Based on his assessment of the grievant's (1) education and training, (2) performance in various divisions of the Agency, (3) high performance ratings, (4) experience in electronic data processing, and (5) experience in international banking, the Arbitrator declared that the grievant was the "superior candidate." Award at 17.

The Arbitrator made the following findings:

From careful examination of all of the material in the record it is our considered conclusion, supported by the evidence, that [the grievant's] record demonstrates that he was the superior candidate for the vacancy, and, that but for union animus he would have been promoted to the position of Bank Examiner, Grade GG-13 on Vacancy Announcement 87-F254. It is our considered opinion, supported by the evidence reviewed above, that had it not been for FDIC's discriminatory action [the grievant] would have been selected for the vacancy. It is our considered opinion, supported by the evidence reviewed above, that [the grievant] was the superior qualified candidate for the vacancy. Where [sic] it not for such discrimination [the grievant] would have been working as a GG 13 Bank Examiner and receiving pay and benefits at the appropriate rate of a GG 13 Bank Examiner. Accordingly, we find that it was the unjustified and unwarranted personnel action of FDIC which resulted in a reduction of part of [the grievant's] pay. This unwarranted and unjustified personnel action on the part of FDIC caused him to be continued to be compensated at Grade GG 12 instead of Grade GG 13, that to which he was entitled.

Award at 19-20.

As a remedy the Arbitrator ordered the Agency to give the grievant a retroactive promotion with backpay to the Grade 13 Bank Examiner position.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award is deficient because it is based on nonfacts and on conclusions which are not supported by the record. The Agency maintains that the Arbitrator made an erroneous finding that the Division Director (Director of DBS) was required to sign off on the selection made by the selecting official and that the outcome of the arbitration would have been different if the Arbitrator had not based his award on that nonfact. The Agency contends that "[t]here is absolutely no evidence that the Division Director had any role with respect to the instant promotion or, otherwise, routinely reviewed and/or approved any similar applicants for promotion[.]" Exceptions at 4, emphasis in original. Rather, the Agency contends, the selection was approved by the Associate Director of DBS.

The Agency asserts that the Arbitrator made a gross mistake of fact when he referred to the grievant as merely one of a six-member negotiating team and on that basis reached the "conclusion that the Regional Director was more than aloof with respect to day-to-day Union activity." Exceptions at 5, citation omitted. The Agency contends that the Regional Director provided the grievant with a copy of a letter concerning the withdrawal of an unfair labor practice charge in the grievant's capacity as the Executive Vice President of the local, not as a member of the negotiating team.

The Agency also contends that the award is contrary to the Back Pay Act because "the Arbitrator erroneously reconstructed the applicable selection process in this case." Exceptions at 6. The Agency maintains that the Arbitrator improperly relied on factors, such as performance evaluation contained in the merit promotion plan, which were not required to be applied during the selection process. The Agency states that under the merit promotion plan, "the Selecting Official is instructed to select any person on the list without further formal ranking or justification." Id. at 7, citation omitted, emphasis in original. The Agency contends that because of that erroneous reconstruction, the Arbitrator's finding that the grievant would have been selected is unsupported.

B. Union's Opposition

The Union denies that the award is based on nonfacts and asserts that the Agency has failed to meet the test adopted by the Authority for finding an award to be deficient on that basis. Rather, the Union contends, the Agency has challenged only two facts relied on by the Arbitrator: (1) that the Division Director was required to approve the selecting official's selection for the position, and (2) the characterization of the grievant "as merely a member of the negotiating team." Opposition at 5. The Union states that "[n]either of these two minor factual disagreements with the Arbitrator's factual determination [is] the central fact upon which the decision was based. In each case, the Arbitrator's Award specifically states his conclusion that these factual determinations were but one among many which supported his conclusion." Id. at 5-6, emphasis in original.

The Union contends that the Arbitrator made the necessary findings under the Back Pay Act to support the award of a retroactive promotion with backpay. The Union states that "[t]he Arbitrator clearly articulated his finding that the grievant was affected by [a]nti-union animus which directly resulted in his failure to receive a promotion." Opposition at 11. Further, the Union states that the Arbitrator "explicitly found that but for this anti-union animus the grievant would have been promoted." Id., emphasis in original. The Union denies that the Arbitrator erroneously reconstructed the promotion action when he considered the grievant's performance evaluation. Rather, the Union contends, "the Arbitrator used the [Merit Promotion Plan], promulgated by the Agency, to support his conclusion that the Grievant was objectively better qualified than the selectee." Id. at 11-12.

IV. Analysis

A. The Award Is Not Based on Nonfacts

The Agency's exceptions that the Arbitrator's award is based on erroneous findings of fact or nonfacts fail to provide a basis for finding the award deficient. In order to show that an arbitrator's award is deficient because it is based on a nonfact, the asserting party must prove that the central fact underlying the award is concededly erroneous, a gross mistake of fact, and that but for the arbitrator's reliance upon such fact, a different result would have been reached. Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council, 34 FLRA 230 (1990).

In this case, the Agency has not demonstrated that the matters excepted to constitute the central fact or facts on which the award is based. In our view, the Arbitrator relied on a number of facts to determine that the grievant was subject to union animus because of his protected activities. Among those facts was the finding that the selecting official was aware of the grievant's protected activities and of the grievant's previous differences with the selecting official's supervisor, the Director of DBS. Even if the Director of DBS did not approve the selection himself, that fact does not, as the Agency alleges, negate the Arbitrator's conclusion that the grievant was not selected at least in part because of his past relationship with the Director of DBS. Neither does the allegation that the selecting official was not involved in day-to-day labor relations matters and thus was not aware of the grievant's activities demonstrate an erroneous central fact on which the award is based. The Agency is merely disagreeing with the Arbitrator's overall factual findings that there was discrimination because of the grievant's protected activity and that that discrimination was the reason for the grievant's nonselection. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 1568, 33 FLRA 308, 314 (1988) (disagreement with arbitrator's factual finding contrary to agency's contention provides no basis for finding award deficient). Consequently, the Agency's exceptions in this regard will be denied.

B. The Award Is Not Contrary To the Back Pay Act

The Agency also contends that the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator made an erroneous reconstruction of the selection action and improperly considered performance ratings which, under the merit promotion plan, were required to be applied only during the rating, as opposed to the selection, process. We conclude that the Arbitrator's award of pay and benefits at the Grade 13 level retroactive to the time the selection was made is not contrary to the Back Pay Act.

In order for an award of backpay to be authorized under the Back Pay Act, the arbitrator must determine that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 34 FLRA 311 (1990).

The Arbitrator's award in this case satisfies the above requirements of the Back Pay Act. The Arbitrator found that the grievant was affected by an unjustified or unwarranted personnel action. That is, the Arbitrator specifically found that the Agency had improperly considered the grievant's protected union activity in violation of section 7116(a)(1) and (2) of the Statute. See National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181 (1988) (Proposal 4) (discussing the authority of an arbitrator to determine whether the nonselection of an employee complies with applicable law), enforced as to other matters sub nom. Department of the Treasury, United States Customs Service v. FLRA, 873 F.2d 1473 (D.C. Cir. 1989).

The Arbitrator applied the Authority's "dual motive" test, first enunciated in Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981). He found that "union animus was a motivating factor in the denial of [the grievant's] promotion" and found that there was a direct causal relationship between the grievant's protected union activity and the Agency's failure to select him for promotion. Award at 11. He concluded that the grievant would have been selected for promotion had it not been for his union activities. Compare United States Department of Defense, Department of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas, 18 FLRA 142, 165-67 (1985) (Authority adopted administrative law judge's finding that there was a direct causal relationship between the agency's unlawful consideration of an employee's protected union activity and his nonselection for promotion), with Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 30 FLRA 562 (1987) (setting aside arbitrator's award that grievant be promoted with backpay because of discrimination on account of national origin when arbitrator did not establish that grievant would have been selected for the next vacancy if agency had not acted improperly and, therefore, arbitrator failed to make the direct connection between agency's improper action and grievant's failure to be promoted). Finally, the Arbitrator found that the Agency failed to support by a preponderance of the evidence its contention that it would have made the same decision in the absence of the grievant's protected activity. Award at 17; see Letterkenny Army Depot, 35 FLRA No. 15 (1990) (agency failed to show that it would have taken same action in the absence of protected activity and therefore its action was motivated solely by unlawful considerations and was, therefore, violative of the Statute). Accordingly, the Arbitrator's award satisfies the requirements for an award of backpay set forth in the Back Pay Act.

Further, the Agency's contention that the Arbitrator applied the merit promotion plan incorrectly and erroneously reconstructed the promotion action fails to show that the Back Pay Act was violated. The Arbitrator found that the Agency failed to follow the merit promotion plan when the Regional Director gave undue consideration to one ranking factor, performance evaluation for the preceding year, in making the selection and failed to give proper consideration to the other requirements of the merit promotion plan. Award at 15. The Arbitrator used the Regional Director's improper reliance on the preceding year's performance ratings to support the conclusion that the grievant would have been selected on the basis of his overall superior qualifications had not the selection official considered the grievant's protected union activity. Id. at 17. The Agency has not shown that the Arbitrator misinterpreted the merit promotion plan or misapplied the plan in such a manner as to render the award deficient as contrary to the Back Pay Act. Rather, the Agency is only disagreeing with the Arbitrator's reasoning and conclusions, which provides no basis for finding the award deficient. See, for example, Headquarters, U.S. Army Training and Doctrine Command, Fort Mon