35:0274(33)AR - - Health Care Financing Administration, HHS and AFGE Local 1923 - - 1990 FLRAdec AR - - v35 p274



[ v35 p274 ]
35:0274(33)AR
The decision of the Authority follows:


35 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

HEALTH CARE FINANCING ADMINISTRATION

DEPARTMENT OF HEALTH AND HUMAN SERVICES

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-1650

DECISION

March 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award and a "clarification" of award of Arbitrator Paul N. Pfeiffer. The grievance, which concerned the failure to select the grievant for a promotion, was sustained in part and denied in part by the Arbitrator.

Exceptions to the original and clarified awards were 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 Union filed exceptions to the original award and also filed an opposition to the Agency's exceptions.

For the reasons discussed below, we find that the clarified award is not properly before us because the Arbitrator was functus officio when he issued that award. We find also that (1) the portions of the original award directing compensation for the grievant and denying the grievant's request for attorney fees are deficient; and (2) the remaining portions of the award are not deficient.

II. Background and Arbitrator's Award

A grievance was filed over the Agency's failure to select the grievant for the position of Program Analyst, GS-11/12. The grievant claimed that she was unlawfully discriminated against on the basis of age and sex and that the Agency violated the portions of the parties' master collective bargaining agreement concerning the ranking and selection process.

The allegation of sex discrimination was "abandoned" at the arbitration hearing. Award at 3 n.1. In his award dated October 29, 1988, the Arbitrator found that the evidence relating to the charge of age discrimination was "insufficient and unconvincing." Id. at 10. Therefore, he denied this part of the grievance.

As to the claimed violation of the agreement in the ranking and selection process, the Arbitrator found that a number of irregularities in the promotion process had occurred. These irregularities involved the timing of the vacancy announcement for the position and the manner in which the selected employee's application for the position and her performance appraisal were completed and evaluated. The Arbitrator concluded that the irregularities were "substantial and material," and that the grievant "did not receive fair, adequate, and timely consideration for the promotion[.]" Id. at 11.

The Arbitrator found "considerable difficulty" in devising an appropriate remedy for the contract violations. Id. at 13. The Arbitrator noted that if the selection process was rerun, "it is doubtful . . . that the result would be different." Id. The Arbitrator also stated that directing the Agency to establish another GS-11 position and fill it with the grievant would be inappropriate because the grievant's duties were being considered for outside contracting. Id. However, to remedy the irregularities in the selection process, the Arbitrator ordered that the grievant be given priority consideration for another Agency-wide GS-11 vacancy for which she is eligible. Id. at 14. The Arbitrator stated that priority consideration "would not cause an undue hardship to [the selected employee] who may in fact have been the better candidate." Id.

The Arbitrator also found that the grievant "deserves to be compensated in some manner for the injustice perpetrated[]" because "[i]f the promotion had been properly carried out as a year-end procedure, [the selected employee] probably would not have attained the Best Qualified List and, since the intention was to promote from within, the Grievant would have been selected in her stead." Id. The Arbitrator stated that "the appropriate additional relief should be to compensate the Grievant for the lost additional pay to the date of this Award." Id. The amount of the compensation was to be calculated as the difference between the Grievant's GS-9 salary and the salary she would have received "as a GS-11 if she had been promoted on December 16, 1987, until the date of this Award." Id. at 15. In one place in his award, the Arbitrator refers to this compensation as backpay. Id. at 2. Elsewhere in the Award, the Arbitrator refers to the compensation as "damages." Id. at 15. In another place, the Arbitrator refers to "damages in the form of back pay." Id. at 3.

The Arbitrator also directed that (1) a notice to employees be posted on all bulletin boards at the Agency's headquarters office, and (2) a copy of the award be placed in the personnel files of various Agency officials who were involved in this selection action. Id. at 15. Finally, the Arbitrator denied "[t]he Grievant's request for attorney's fees[,]" noting that the grievant's case "was ably presented at the hearing by the Union representatives so that there was no need to employ outside counsel to prepare a brief to the Arbitrator." Id.

III. The Union's Request for Clarification of the Award

On November 4, 1988, the Union requested the Arbitrator to clarify that portion of the award directing the payment of compensation to the grievant. The Union stated the following:

In reading your award, it is clear that you have awarded backpay. Under current law and regulation, the only basis for an award of back pay is a temporary or permanent promotion from the time the back pay award begins. It appears from your award that you have ordered the Agency to temporarily promote [the grievant]; however, your award is not specific in this regard.

Attachment 2 to Union's Exceptions.

The Union advised the Arbitrator that the award was "subject to reversal by the . . . Authority" unless the Arbitrator specified that an unjustified or unwarranted personnel action had occurred which resulted in a loss of pay and that but for the unjustified or unwarranted personnel action, the loss of pay or benefits would not have occurred. Id. The Union requested the Arbitrator to "clearly articulate that the Agency be directed to temporarily promote the grievant to GS-11 as a direct result of the unjustified or unwarranted personnel action taken against her by the Agency." Id. The Union also forwarded to the Arbitrator a copy of the Authority's decision in American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88 (1988) (Health Care Financing Administration), Order Denying Requests for Reconsideration of Decision and Stay of Award, 34 FLRA 301 (1990). Finally, the Union advised the Arbitrator that the Back Pay Act, 5 U.S.C. § 5596, requires that interest be paid on awards of backpay.

The Agency did not join in the Union's request for clarification. The Agency responded to the request by stating that the Union was "seeking not clarification, but revision of the award[.]" Attachment 3 to Union's Exceptions. The Agency argued that the Arbitrator's award "[c]learly . . . does not award what the Union now seeks" and that the award could not be modified. Id.

In response, the Arbitrator requested each party to submit a memorandum concerning the issue of relief. The Arbitrator asked the parties to address "whether the Award must be based upon the provisions of the Back Pay Act or whether the Award can be construed as damages[.]" Attachment 4 to Union's Exceptions.

The Agency responded by asserting that "no alteration of the award can be made[.]" Attachment 5 to Union's Exceptions. The Agency stated that the Arbitrator was "without authority . . . to make any modifications" to the award. Id.

The Union responded by noting that the grievance raised an allegation of age discrimination for which an award of damages would be appropriate. The Union noted, however, that absent a finding of discrimination, an award for relief of a contract violation must conform to the Back Pay Act. The Union asserted that its reading of the award indicated that the Arbitrator had awarded the grievant backpay as compensation for the unlawful denial of her promotion. The Union further asserted that "[u]nder current law and regulations, the only basis for an award of backpay is a temporary or permanent promotion in conjunction with the backpay." Attachment 6 to Union's Exceptions.

Accordingly, the Union "recommend[ed]" that the Arbitrator "clarify" his award by (1) finding that but for the Agency's unjustified or unwarranted personnel action in including the selected employee on the best-qualified list, the grievant would have been promoted, and (2) directing that the grievant be promoted to an equivalent GS-11/12 position from the date of her nonselection to the date of the award. Id.

IV. Arbitrator's Clarification of Award

Based on the parties' submissions and the Authority's decision in Health Care Financing Administration, the Arbitrator issued a "Clarification of Award" on November 22, 1988. The Arbitrator stated that in his original award, he found that the Agency's promotion process had been "substantially flawed" and that the Agency had violated the parties' agreement. Arbitrator's Clarification at 1. The Arbitrator also noted his finding that:

[I]f the process had been properly carried out as scheduled, [the selected employee] would probably not have made the Best Qualified list and since the intention of the Selecting Official and the Branch Chief at all times was to promote from within the Branch, the Grievant, as the only remaining candidate from within, would have been selected for the promotion to the GS-11 position.

Id. at 2.

The Arbitrator stated that "but for" the unjustified and unwarranted personnel actions, "the Grievant would have been promoted to the GS-11 position[.]" Id. The Arbitrator directed the Agency to temporarily promote the grievant to an equivalent GS-11 position from the date of her nonselection and to pay her the difference between her GS-9 position and the GS-11 position, without interest, from the date of the nonselection to the date of his original award.

V.Positions of the Parties

A. Agency's Exceptions

The Agency excepts to the original and clarified awards on the basis that they conflict with the Back Pay Act and management's right to select under section 7106(a)(2)(C) of the Statute. The Agency also argues that the original award improperly requires management to take certain actions with respect to non-bargaining unit positions and that the clarified award impermissibly altered the original award.

The Agency argues first that in the original award, the Arbitrator did not clearly find that the grievant would have been selected but for the procedural irregularities which he found had occurred. The Agency argues that there was no clear evidence that the grievant would have been selected for the position. On this basis, the Agency excepts to the Arbitrator's original award of damages, arguing that an award of damages is inconsistent with the Authority's decision in Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 15 FLRA 213 (1984).

As for the award of backpay in the Arbitrator's clarification of award, the Agency argues that the Arbitrator did not initially award the grievant a retroactive promotion with backpay in order to remedy an unjustified or unwarranted personnel action. The Agency claims that the clarified award constitutes an improper modification of the original award.

The Agency also argues that the Arbitrator's findings concerning the timing of the vacancy announcement infringe on management's right to select under section 7106(a)(2)(C) of the Statute. The Agency argues that the timing of a vacancy announcement is an inseparable part of the exercise of management's right to select and that the Arbitrator lacks the authority to impose his views as to the timing of Agency selection actions. The Agency also argues that the Arbitrator did not reference the scheduling of the promotion process in his first award. By making such reference in the second award, the Agency claims that the Arbitrator modified his award. According to the Agency, the modification is contrary to the holding in Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410 (1988) (DODDS), and constitutes a non-fact, but for which a different result would have been reached.

Finally, the Agency excepts to the portion of the award which directed the Agency to place copies of the award in the personnel files of various Agency officials. The Agency argues that proposals which provide for "Union involvement in policing of the actions of managers and supervisors" are nonnegotiable. Agency's Exceptions at 17. The Agency maintains that "[m]atters to which the Union does not have access through the bargaining process cannot be provided to it by a third party through the arbitration process." Id.

B.Union's Opposition to Agency's Exceptions

The Union argues that the Arbitrator's original award contains the findings necessary to support the award of a temporary promotion and backpay. The Union maintains that because these findings were simply "more directly" stated in the clarified award, the clarification did not impermissibly alter the original award. Union's Opposition at 4.

The Union also argues that the Agency's exception to the portion of the award directing that a copy of the award be placed in the personnel files of various Agency officials is "invalid" because the Arbitrator did not order that any disciplinary action be taken against the officials. Id. at 5. The Union argues that the award is simply a "procedural matter." Id.

C.Union's Exceptions

The Union argues that the Arbitrator's original award conflicts with applicable law and regulations, and is based on a non-fact. First, the Union argues that the Arbitrator failed to apply the proper test to determine whether the grievant was discriminated against on the basis of her age under Federal law governing age discrimination in employment. Second, the Union argues that the Arbitrator's finding on attorney fees was "premature" because no application for attorney fees had been filed with the Arbitrator by the Union. The Union also asserts that the Arbitrator did not apply the standards for granting attorney fees under 5 U.S.C. § 7701(g) and the Back Pay Act. To the extent the Arbitrator failed to apply the proper test on the issue of age discrimination and made an erroneous finding on attorney fees, the Union further alleges that the award was based on non-facts.

The Union also claims that the Arbitrator failed to apply the regulations of the Equal Employment Opportunity Commission (EEOC) in resolving the complaint of age discrimination. The Union argues further that the Arbitrator failed to apply regulations of the Office of Personnel Management and EEOC concerning the issue of attorney fees.

Finally, the Union asserts that "[t]he [a]ward [l]acks [e]ntirety." Union's Exceptions at 5. The Union offers no specific argument to support this assertion, however.

VI.Analysis

A.Agency's Exceptions

1.The Arbitrator Was Not Authorized to Issue The "Clarification of Award"

We agree with the Agency that the Arbitrator was not authorized to issue the November 22, 1988, "Clarification of Award." We find that the Arbitrator was functus officio following the issuance of the October 29, 1988, award.(*)

In DODDS, 32 FLRA 410, the Authority described the circumstances under which arbitrators may modify or amend their awards on the request of either or both parties to an arbitration proceeding. The Authority stated that arbitrators may correct or clarify awards in order to correct clerical mistakes or obvious errors in arithmetical computations. Requests for correction of clerical mistakes or such obvious errors need not be made jointly; such requests are valid if made by only one of the parties involved. See Health Care Financing Administration, 33 FLRA 88, 93. However, an arbitrator may not reconsider an award or issue a new decision without a joint request of the parties. DODDS at 415.

In this case, the Union requested the Arbitrator to clarify the portion of the award directing the payment of compensation to the grievant. The Union requested the Arbitrator to: (1) direct the Agency to temporarily promote the grievant with backpay; and (2) specify that an unwarranted or unjustified personnel action directly resulted in the grievant's loss of pay, and that but for the action, the loss would not have occurred. In our view, the Union's request cannot reasonably be interpreted as a request that the Arbitrator correct a clerical mistake or an obvious computational error. Rather, we conclude that the Union requested the Arbitrator to make additional findings and revise the remedy provided in the Arbitrator's original award.

We note in this regard that the Arbitrator responded to the Union's request by asking the parties to submit additional information and to "focus their attention upon the issue whether the Award must be based upon the provisions of the Back Pay Act or whether the Award can be construed as damages[.]" Attachment 4 to Union's Exceptions. In our view, a simple clarification of the previous award would not have required the parties to provide this information to the Arbitrator. As such, the Arbitrator's request for additional information buttresses our conclusion that the Union requested a modification, rather than a clarification, of the Arbitrator's original award.

Likewise, we are unable to conclude that the Arbitrator simply clarified an ambiguity in the award, as occurred in Health Care Financing Administration, on which the Union now relies for support. In Health Care Financing Administration, the arbitrator issued a supplemental memorandum which the Authority found to constitute a clarification of an ambiguity raised by the union and a restatement of the arbitrator's original award. In this case, the Arbitrator did not clarify or restate his original award. The Arbitrator altered his remedy by directing that the grievant be given a temporary promotion rather than priority consideration. Accordingly, Health Care Financing Administration does not support the Union's argument.

For the foregoing reasons, we conclude that the Arbitrator's "clarification" constituted a revision of his previous award. There was no joint request of the parties that the Arbitrator revise the original award. In fact, the Agency immediately objected to the Union's request on the basis that the Union was seeking to have the award revised, rather than clarified. As there was no joint request of the parties to reopen and revise the award, the Arbitrator was not empowered to do so based solely on the Union's request. Consequently, the Arbitrator was not authorized to issue the "Clarification of Award," and that award is set aside.

We turn now to an analysis of exceptions to the Arbitrator's original award.

2. The Award of Compensation is Contrary to the Back Pay Act

As a preliminary matter, we note that the Arbitrator refers to his award of compensation as both backpay and damages. Award at 2, 3, 15. The Arbitrator clearly directs, however, that the award be calculated as the difference in salary between the grievant's GS-9 position and the GS-11 position for which she was not selected. Accordingly, for purposes of this decision, we will construe the award as backpay.

For an award of backpay to be authorized under the Back Pay Act, an arbitrator must determine that: (1) the grievant 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 would not have suffered the withdrawal or reduction. See, for example, U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 34 FLRA 311 (1990). A violation of a collective bargaining agreement constitutes an unwarranted or unjustified personnel action. See, for example, U.S. Department of Labor, OIPA and American Federation of Government Employees, AFL-CIO, Local 12, 26 FLRA 368 (1987), Decision on Reconsideration, 27 FLRA 109 (1987). To comply with the Back Pay Act, an arbitrator must find that the contract violation directly resulted in an employee's loss of pay and that but for the violation, the employee would not have suffered the loss of pay.

In this case, we conclude that the Arbitrator's findings of procedural irregularities do not satisfy the requirements of the Back Pay Act. In particular, we conclude that the Arbitrator's findings on the elements necessary to establish an entitlement to backpay do not clearly establish that the grievant was either affected by an unjustified or unwarranted personnel action or that such an action occurred which directly resulted in the loss of pay, allowances, or differentials and that but for the action, the loss or reduction would not have occurred.

The Arbitrator concluded that four irregularities occurred during the selection process. Two of these irregularities relate to the timing of the vacancy announcement. The other two irregularities relate to the manner in which the selected employee's application for the position and her performance appraisal were completed. Our conclusion that the award does not provide a basis for awarding backpay is based on different reasons that relate to the two different types of procedural irregularities.

First, with regard to the timing of the vacancy announcement, the Arbitrator found that the Agency erred both by beginning the promotion process too early and by beginning it too late. The Arbitrator stated first that "[t]he record does not show a need [for the Agency] to have waited until the middle of November to post the vacancy." Award at 10. The Arbitrator found that "[i]f the process had been commenced shortly after September 30th, the Grievant would have been selected." Id. The Arbitrator also stated, however, that there was "no imperative to move forward prior to year end[,]" id. at 11, and that the year-end process "had the effect of distorting the appearance of the relative abilities of the two candidates[.]" Id. at 10. The Arbitrator concluded that if the promotion process "had been properly carried out as a year-end procedure, [the selected employee] probably would not have attained the Best Qualified List and, since the intention was to promote from within, the Grievant would have been selected[.]" Id. at 14.

Significantly, the Arbitrator did not find that the Agency's timing of the promotion action violated any provision of law, regulation, or the parties' collective bargaining agreement. In fact, the only provisions of the parties' master agreement referenced by the Arbitrator in support of his findings of procedural irregularities relate to the credit to be accorded applicants for awards, experience, and appraisal of their knowledge, skills and abilities. Id. at 6-7. The Arbitrator's findings as to the timing of the announcement are made in connection with his discussion of the possibility that the "timing of the process may have been deliberately established to facilitate the choice" of the selected employee. Id. at 10. The Arbitrator does not find that the Agency improperly engaged in preselection, however. Although the Arbitrator stated that "[t]he impression conveyed by the evidence is that [the selected employee] was pre-selected for the promotion[,]" id. at 11, the Arbitrator finds that "there is no hard evidence of record to clearly establish this fact." Id. at 10.

The Arbitrator found that the grievant would have been selected for the promotion if the vacancy had been announced earlier and that if the vacancy had been announced later, the grievant would have been selected because the selected employee "probably would not have attained the Best Qualified List[.]" Id. at 14. The Arbitrator did not find, however, that the Agency's failure to begin the promotion process either earlier or later than it did was improper in any way. Accordingly, even if we concluded that the Arbitrator found a causal connection between the timing of the vacancy announcement and the failure of the grievant to be promoted, the Arbitrator's award does not satisfy the requirements of the Back Pay Act. That is, the Arbitrator's finding that the grievant's nonselection resulted from the timing of the action does not support an award of backpay because there is no basis on which to conclude that the timing of the action constituted an unjustified or unwarranted personnel action.

The remaining two irregularities in the promotion process relate to the selected employee's application for promotion and her performance appraisal. In reaching his findings as to these irregularities, the Arbitrator referenced the provisions of the parties' agreement relating to the credit to be accorded applicants for their awards and experience, and an appraisal of their knowledge, skills and abilities. We cannot conclude, however, that the Arbitrator clearly found that but for the irregularities, the grievant would have been selected for the position.

As we stated earlier, to comply with the Back Pay Act, an arbitrator must find that a contract violation directly resulted in an employee's loss of pay and that but for the violation, the employee would not have suffered the loss of pay. The finding that a personnel action has "directly resulted" in a loss of pay, allowances or differentials must be clear. In a grievance action concerning a failure to select or promote an employee, a finding that a contract violation directly resulted in a monetary loss must be predicated on a finding that the aggrieved employee would have been selected or promoted. See American Federation of Government Employees, Local 1698 and Department of the Navy, Aviation Supply Office, 34 FLRA No. 156 (1990) (arbitrator's finding of a "causal connection" between the agency's improper action and the failure of the grievant to be promoted satisfies the requirements of the Back Pay Act). Otherwise, the employee would not have suffered the loss of pay, allowances or differentials. Where a record does not clearly establish that a grievant would have been selected or promoted, there is no basis on which to award backpay. See, for example, U.S. Army Missile Command, Redstone Arsenal and American Federation of Government Employees, Local 1858, 19 FLRA 265 (1985) (retroactive promotion and backpay struck from award in the absence of a finding that the aggrieved employee definitely would have been promoted).

With regard to the application for promotion, the Arbitrator found that a supervisor, who became "the principal force motivating his superiors to approve his recommendation" of the selected employee, counseled both the grievant and the selected employee on the preparation of their applications. Id. at 11. The Arbitrator found that the selected employee had consolidated the description of her experience in her application "so as to render it virtually impossible to distinguish which experience and which functions had been performed at which grade and point in time." Id. The Arbitrator stated that the promotion committee "could have been sufficiently confused" by the application so as to give the selected employee undeserved points. Id.

Although the manner in which the application was prepared may have constituted a procedural irregularity, the Arbitrator did not make the requisite finding that it directly resulted in the failure to select the grievant. In fact, the Arbitrator found that "[t]he record does not establish that [the supervisor] actually counseled [the selected employee] to consolidate her description of her experience and duties[.]" Id. The fact that the manner in which the application was prepared may have "confused" the selection committee does not lead to a conclusion that this irregularity supports an award of backpay.

Finally, with regard to the performance appraisal, the Arbitrator found that the selected employee was improperly rated at a GS-9 (rather than a GS-7) level and that she was improperly given credit for an award which was unrelated to the position being filled. The Arbitrator concluded that "it is entirely conceivable" that the selected employee would not have made the best qualified list if the selection committee had "known the true facts[.]" Id.

The question remains whether the rating of the selected employee directly resulted in the failure to select the grievant. Our review of the award leads us to conclude that there is no direct connection between the selected employee's rating and the failure of the grievant to be promoted. In this connection, we note the following.

First, the Arbitrator found that there was "no evidence that the Grievant was the better candidate." Id. at 10. The Arbitrator reinforced this finding in his discussion of his decision to award the grievant priority consideration. The Arbitrator stated that priority consideration "would not cause an undue hardship to [the selected employee] who may in fact have been the better candidate." Id. at 14. In addition, as indicated above, the Arbitrator did not find that the manner in which the appraisal was prepared resulted in the grievant's failure to be promoted. The Arbitrator found only that "it is entirely conceivable that had the [p]romotion [c]ommittee known the true facts, [the selected employee] would not have made the Best Qualified list." Id. at 11. Further, the Arbitrator found that if the promotion process had been carried out as a year-end procedure, the selected employee "probably would not have attained the Best Qualified List" and the grievant would have been selected. Id. at 14.

In our view, the Arbitrator's findings are too speculative to support a conclusion that the selected employee's improper rating resulted in the failure of the grievant to be promoted. When combined with the Arbitrator's statements concerning the relative qualifications of the selected employee and the grievant, these findings do not satisfy the requirements of the Back Pay Act.

Finally, we believe that our analysis is based on a fair reading of the Arbitrator's award as a whole. We have not adopted, and do not intend to adopt, an approach to a review of arbitration awards under the Back Pay Act which would require arbitrators to include certain specific words or phrases in their awards. Nevertheless, the Back Pay Act constitutes a waiver of sovereign immunity and, as such, must be strictly construed. See United States v. Testan, 424 U.S. 392 (1976). We are obligated, therefore, to ensure that backpay awards comply with all requirements of the Back Pay Act. Having thoroughly examined the Arbitrator's award in this case, we conclude that the award of backpay does not satisfy those requirements. Accordingly, the award of backpay is deficient and will be set aside.

3. The Award Does Not Violate Management's Right to Select Under Section 7106(a)(2)(C)

The Agency claims that the Arbitrator's findings concerning the timing of the vacancy announcement interfere with the Agency's right to select under section 7106(a)(2)(C) of the Statute. The Agency argues that "the determination of when a vacancy will be announced is 'part and parcel' of the decision regarding whether to announce." Agency's Exceptions at 9.

The Agency's exception presents no basis on which to find the award deficient. The Arbitrator's award does not require the Agency to take any action concerning the posting of vacancy announcements. The Arbitrator's statements as to the timing of the vacancy announcement relate only to the alleged irregularities in the ranking and selection process. The Agency's exception to these statements constitutes mere disagreement with the Arbitrator's findings, reasoning and conclusions. This disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Council of Prison Locals, Local 2052, 34 FLRA 286 (1990) (disagreement with an arbitrator's findings of fact and evaluation of evidence and testimony provides no basis for finding an award deficient).

4. Order Directing that Copies of Award be Placed in Personnel Files is Not Deficient

The Agency claims that the portion of the award requiring it to place copies of the award in the personnel files of various Agency officials is deficient because it would allow the Union access to those officials which it could not otherwise obtain through the bargaining process. The Agency's argument provides no basis for finding this portion of the award deficient.

Arbitrators have wide latitude in fashioning remedies for a party's violation of its collective bargaining agreement. Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64 (1981). Unless the portion of the award requiring the Agency to place copies of the award in the personnel files violates law, rule, regulation, or is otherwise deficient under section 7122 of the Statute, there is no basis on which to set it aside.

The Agency does not claim, and it is not otherwise apparent to us, that placing a copy of the award in the personnel files of Agency officials would violate any law, rule, or regulation. We note, in this regard, that the Arbitrator neither directed that copies of the Award be placed in the employees' official personnel files nor specified any length of time that the Award was to be retained in the files. See Federal Personnel Manual Supplement 293-31, Subchapter S5-6.a, which provides that various performance related records "likely to be helpful for managers in rating performance or in assessing conditions that may impact on employee performance[ ]" may be maintained in an Employee Performance File System. Compare Department of Health and Human Services, Social Security Administration, Region X, Seattle, Washington and American Federation of Government Employees, Local 3937, 19 FLRA 547 (1985) (award requiring copy of arbitrator's decision reversing a reprimand to be placed in grievant's official personnel file set aside because award would effectively result in permanent retention of reprimand, in violation of Federal Personnel Manual).

Further, the award does not require the discipline of nonbargaining unit employees. Accordingly, the Agency's reliance on the Authority's decisions in National Federation of Federal Employees, Local 1430 and Department of the Navy, Northern Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45 (1984) and National Association of Government Employees, Local R7-23 and Headquarters, 375th Air Base Group, Scott Air Force Base, Illinois, 7 FLRA 710 (1982) is misplaced.

The Agency has not demonstrated that the Arbitrator's direction that copies of the Award be placed in various officials' personnel files violates law or regulation, or is deficient on other grounds set forth in section 7122 of the Statute. Consequently, the Agency's exception provides no basis for setting aside this portion of the award.

B.Union's Exceptions

1.The Arbitrator's Denial of the Grievant's Request for Attorney Fees is Deficient

The Union claims that "[n]o application for attorney's fees had been filed with the Arbitrator as it would have been premature to do so." Union's Exceptions at 3. The Union also argues that the Arbitrator did not apply the proper legal and regulatory standards for determining whether to grant attorney fees. For the following reasons, we reject the Union's assertion that the Arbitrator erred in deciding the request for attorney fees because a request had not been filed. We agree with the Union, however, that the Arbitrator's decision does not comply with applicable standards.

First, in its post-hearing brief to the Arbitrator, the Union requested that "Counsel for the Grievant . . . be awarded attorney's fees in accordance with law and EEOC and FLRA regulations." Attachment 9 to Union's Exceptions, at 36. The Arbitrator noted that the grievant had requested attorney fees. Award at 2, 15. Accordingly, the Union's assertion that a request for attorney fees had not been made is clearly incorrect.

Second, contrary to the Union's assertion, it is not premature to request attorney fees as part of an arbitrator's award on the merits of a grievance. See Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 420 (1988) ("While such requests [for attorney fees] may be submitted during the course of an arbitration proceeding, nothing . . . requires that a request for attorney fees be made before an award is final and binding."). Arbitrators may rule on requests for attorney fees simultaneous to rendering a decision on the merits of a grievance. See Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 30 FLRA 1206 (1988), Order Granting Motion for Reconsideration, as to other matters, 32 FLRA 757 (1988); and International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680 (1984).

Although there was nothing to prevent the Arbitrator from ruling on the request for attorney fees, the Arbitrator's decision itself is deficient. The "standards established under 5 U.S.C. § 7701(g), which must be applied under the Back Pay Act, require a fully articulated, reasoned decision resolving a request for an award of attorney fees which sets forth specific findings supporting the determination on each pertinent statutory requirement." National Association of Government Employees, Local R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 1159, 1165 (1988) (Langley). The Arbitrator denied the grievant's request for attorney fees solely on the basis that the "case was ably presented at the hearing by the Union representatives so that there was no need to employ outside counsel to prepare a brief to the Arbitrator." Award at 15. This statement does not constitute a fully articulated, reasoned decision setting forth specific findings on the pertinent statutory requirements. Accordingly, the Arbitrator's denial of the request for attorney fees is deficient.

The Authority has remanded to the parties other cases where an arbitrator denied a request for attorney fees without adequate support with the direction that they request the arbitrator to provide a fully articulated decision. See, for example, Langley, 32 FLRA at 1166. In this case, however, we conclude that it is not appropriate to do so. An award of attorney fees under the Back Pay Act can be made only in conjunction with an award of backpay, allowances, or differentials. See, for example, Local 12, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, 24 FLRA 134 (1986). Here, there was no proper award of backpay under the Back Pay Act. Therefore, there is no basis for an award of attorney fees and no reason to remand the case.

2. The Union Has Not Demonstrated that the Arbitrator's Finding on Age Discrimination is Deficient

The Union alleges that the Arbitrator failed to apply the proper test to determine whether the grievant was discriminated against on the basis of her age. According to the Union:

The grievant first has to establish a prima facie case of discrimination; then the Agency has the burden of persuasion to articulate a legitimate nondiscriminatory reason for its action; and, if the Agency does so, then the grievant has to prove by a preponderance of the evidence that the stated reasons addressed by the Agency were pretextual.

Union's Exceptions at 2, citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Union also claims that "the Arbitrator determined that the entire selection process was pretextual; however, he did not indicate in any way whether his analysis was utilized in determining whether discrimination existed." Id. at 3.

We agree that a party claiming that an action is discriminatory must make a prima facie showing of discrimination. If a party establishes a prima facie case, an agency may then seek to demonstrate that its action was lawful. See Department of Health and Human Services, Social Security Administration and Local 1346, American Federation of Government Employees, AFL-CIO, 29 FLRA 247 (1987). Compare Letterkenny Army Depot, 35 FLRA No. 15 (1990) (discussing the elements of a prima facie case alleging discrimination on the basis of Union activities and the parties' burdens of proof in those cases).

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1982) prohibits age discrimination in employment. 29 U.S.C. § 633a provides that all "personnel actions" affecting employees in Federal agencies "shall be made free from any discrimination based on age." The standard for determining liability under the ADEA is that "age be a determining factor in the employment decision; it need not be the determining factor in the decision." Cuddy v. Carmen, 762 F.2d 119, 122 (D.C. Cir. 1985), cert. denied, 474 U.S. 1034 (1985), reh'g denied, 475 U.S. 1072 (1986) (emphasis in original).

In Cuddy v. Carmen, the court discussed the legal framework applicable to ADEA cases. The court stated:

First, the plaintiff must present a prima facie case of discrimination. In failure-to-hire or failure-to-promote cases, this consists of a showing that (1) the plaintiff belongs to the group protected by the relevant statute (here the group of persons between the ages of 40 and 70); (2) the plaintiff was qualified for the position in question; (3) the plaintiff was not hired/promoted; and (4) a person not of the protected group was selected (here a person below the age of 40).

Once the plaintiff has presented this prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." This requirement imposes upon the defendant the burden of producing evidence "that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason."

Id. (citations omitted).

In this case, the grievant was 40 years old at the time of her nonselection; there is no dispute that the grievant was qualified for the position, and the selected employee was under 40 years of age. Award at 4-5. It appears clear, therefore, that the grievant established a prima facie case of age discrimination in violation of the ADEA. The fact that the grievant established a prima facie case does not require a finding that the Arbitrator's award is deficient, however. Rather, as stated by the court in Cuddy v. Carmen, 762 F.2d at 123, "the ultimate question of the case [is] whether the defendant illegally discriminated against the plaintiff. In ADEA cases this question takes the form of whether age was a determining factor in the disputed employment decision."

The Arbitrator found that the evidence as to the allegation of age discrimination was "insufficient and unconvincing." Award at 10. The Arbitrator stated that "[n]one of the officials in the chain of selection focused on the Grievant's age[]" and that "[t]he record of the Selecting Officer in having promoted fifteen persons over the age of 40 out of 38 total promotions dispels any notion of unlawful age discrimination as an office practice." Id.

In our view, these findings constitute the Arbitrator's determination that the Agency did not unlawfully discriminate against the grievant on the basis of her age. The Union has not demonstrated that this conclusion is inconsistent with law. In particular, the Union has not demonstrated that the Arbitrator failed to apply the appropriate legal standard for deciding the issue. Although the Arbitrator did not discuss whether the grievant had established a prima facie case or any of the other applicable tests for allocating the burdens in an age discrimination case, we can find no basis on which to conclude that he was required to do so. Compare United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983) ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.").

Further, for reasons discussed in detail in connection with our analysis of the Arbitrator's award of compensation to the grievant, we reject the Union's assertion that "the Arbitrator determined that the entire selection process was pretextual[.]" Union's Exceptions at 3. To the contrary, the Arbitrator found that there was "no hard evidence" that the Agency had engaged in preselection. Award at 10.

Finally, we note that in addressing the allegation that the Agency has engaged in age discrimination, the Arbitrator stated that the grievant was "not physically unattractive, and, as a witness, did not display any of the common adverse characteristics of the aging process." Id. Nothing in applicable law would indicate that these matters are in any way relevant, or even appropriate, to determining whether unlawful age discrimination occurred. We have not relied on these findings in our analysis of the award and we strongly urge the Arbitrator to refrain from such comments in future cases.

3. The Union has Not Established that the Award is Based on Non-facts

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. See, for example, U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA 435 (1986). In order for an award to be found deficient on this ground, it must be established that the alleged non-fact 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.

The Union asserts only that:

[T]he Arbitrator erroneously found that age discrimination did not exist without applying the required legal test. But for this error, a different result would have been obtained because the Arbitrator did, in fact, find that the essential elements of the selection process were pretextual.

Union's Exceptions at 4 (footnote omitted).

As noted previously, the Union has not demonstrated that the Arbitrator's finding that the Agency did not discriminate against the grievant on the basis of her age is deficient. In fact, the Union does not dispute the factual findings on which the Arbitrator's conclusion is based. As also noted previously, we reject the Union's assertion that the Arbitrator determined that the selection process in question was pretextual. Accordingly, we reject the Union's exception that the Arbitrator's award on the issue of age discrimination is based on a non-fact.

The Union also claims that the Arbitrator's decision concerning the request for attorney fees is based on a non-fact. The Union asserts only that "the Arbitrator made an erroneous finding on attorney's fees." Id.

The Union has not identified the alleged erroneous finding and has made no attempt to demonstrate that the erroneous finding constitutes a gross mistake of fact but for which the Arbitrator would have reached a different result. Consequently, this exception provides no basis for finding the award deficient.

4. The Union has Not Demonstrated That the Award Lacks Entirety

The Union argues that the award lacks entirety. As the Union does not explain this exception other than to reference the arguments it made in support of its other exceptions, the Union has not demonstrated that the award is deficient on this basis. See Mid-America Program Service Center, Social Security Administration, Department of Health, Education and Welfare and Local No. 1336, American Federation of Government Employees, AFL-CIO, 5 FLRA 264, 270 (1981) (Authority denied an exception claiming that award lacked entirety, finding that the arbitrator's failure to quote all of the disputed contract provisions provided no basis for finding the award deficient).

VII. Conclusions

We conclude that the Arbitrator was not empowered to issue his "Clarification of Award" dated November 22, 1988. As to the exceptions to his award dated October 29, 1988, we find that the portion of the award directing that the grievant be given damages as compensation is deficient under the Back Pay Act and must be set aside. Although the Arbitrator's denial of the request for attorney fees is deficient because it does not constitute a fully articulated, reasoned decision setting forth specific findings on the pertinent statutory requirements, there is no basis for an award of attorney fees in this case and, therefore, no reason to remand the case. The remaining portions of the award, directing that the Agency provide the grievant with priority consideration for vacancies for which she is eligible, directing that a copy of the award be placed in the files of various named Agency officials, and directing that a notice to employees concerning the award be posted on Agency bulletin boards are not deficient.

VIII. Decision

The award is modified by striking the portion directing the payment of compensation to the grievant. The clarification of award is set aside in its entirety.




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