41:0520(51)AR - - HUD, Regional Office, Atlanta, GA and AFGE Local 156, - - 1991 FLRAdec AR - - v41 p520



[ v41 p520 ]
41:0520(51)AR
The decision of the Authority follows:


41 FLRA No. 51

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

REGIONAL OFFICE

ATLANTA, GEORGIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1568

(Union)

0-AR-1948

DECISION

July 9, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an interim award and final award of Arbitrator William G. Haemmel 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 an opposition to the Agency's exceptions.

The Union filed a grievance contending that management had failed to comply with the parties' collective bargaining agreement by failing to promote unit employees who had satisfied the contractual requirements for a career-ladder promotion. In an interim award, the Arbitrator denied the grievance as to all but three grievants. In a final award, the Arbitrator ordered those three grievants retroactively promoted with backpay.

We conclude that the Agency fails to establish that the awards are deficient, and we will deny the exceptions.

II. Background and Arbitrator's Awards

On February 9, 1988, the Union filed a grievance contending that management had failed to comply with the parties' collective bargaining agreement by failing to promote bargaining-unit employees who had satisfied the contractual requirements for a career-ladder promotion. The grievance was not resolved and was submitted to arbitration. Prior to the hearing before the Arbitrator, the parties and the Arbitrator identified 15 specific employees as grievants. The parties stipulated the issues for resolution to be whether the failure of management to promote the specified grievants, effective February 9, 1988, violated the parties' agreement and, if so, what should the remedy be.

The Arbitrator noted that career-ladder promotions are governed by Section 13.14 of the parties' agreement, which provides, as follows:

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.

Interim Award at 3. The Arbitrator noted that the Agency's personnel director testified that the critical elements to obtaining a career-ladder promotion are the demonstrated ability to perform satisfactorily at the next higher grade level and the availability of work at the next higher grade level.

With respect to the four grievants in the Agency's general management branch, the Arbitrator noted that the supervisor of those grievants had recommended three of the grievants, Dorsey, Manning, and Register, for career-ladder promotions to GS-12 in February 1988 and had recommended Manning for promotion again in September 1988. The Arbitrator also noted that another employee in this office had filed a grievance over the failure to be granted a career-ladder promotion to GS-12 and the grievance was submitted to another arbitrator. That arbitrator found that the employee had satisfied all of the requirements of Section 13.14 and ruled that management had violated Section 13.14 of the parties' agreement by not promoting that employee. As a remedy, that arbitrator ordered the employee promoted with backpay, retroactive to the date of the grievance. The Authority denied the Agency's exceptions to that award in U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 1568, 33 FLRA 308 (1988) (HUD).

In an interim award, the Arbitrator denied the grievances of all the grievants except Dorsey, Manning, and Register. In denying the grievances, the Arbitrator rejected the grievants' allegations that because they had satisfied the time-in-grade requirement and other minimum qualification requirements, they were entitled to be granted a career-ladder promotion. The Arbitrator ruled that, in order to be granted a career-ladder promotion under Section 13.14, all the specified criteria must be satisfied and not just the time-in-grade requirement.

However, the Arbitrator ruled that management improperly failed to promote grievants Dorsey, Manning, and Register effective February 9, 1988, in violation of Section 13.14 of the parties' collective bargaining agreement. The Arbitrator noted that the parties had stipulated that these grievants met time-in-grade and other minimum qualification requirements for promotion to GS-12. In addition, based on the evidence and testimony presented, the Arbitrator found that as of February 1988, each of these grievants had satisfied the other criteria of Section 13.14: each grievant had demonstrated the ability to perform the duties of the GS-12 grade level to the satisfaction of her supervisor and enough work was available at the GS-12 grade level for each of them.

Because of the passage of time since the filing of the grievances, the Arbitrator issued an interim award sustaining the grievances of Dorsey, Manning, and Register and withheld a final award to give the parties 60 days to discuss the remedy, during which time the Arbitrator retained jurisdiction.

The parties were unable to agree on a remedy and submitted the remedy question to the Arbitrator for final resolution. In a brief to the Arbitrator, the Agency advised the Arbitrator that grievants Dorsey, Manning, and Register had been promoted effective September 24, 1989. The Agency also maintained that the Arbitrator's interim award contained an error regarding the promotion recommendations of Dorsey, Manning, and Register. In addition, the Agency argued that the Arbitrator in his interim award had failed to make the findings necessary for a retroactive promotion with backpay under the Back Pay Act, 5 U.S.C. § 5596.

In response to the Agency's claim that he had erred in his interim award, the Arbitrator corrected the record. He noted that his interim award had stated that the supervisor of Dorsey, Manning, and Register had recommended them for promotion in February 1988. The Arbitrator stated that page 65 of the transcript of the hearing reflected that the recommendation was in September 1988, and he corrected the error in the interim award accordingly. However, he ruled that the error was harmless because he had found in his interim award that each of these grievants had demonstrated the ability to perform the duties of the GS-12 grade level to the satisfaction of her supervisor as of February 1988, as required by Section 13.14 of the agreement.

The Arbitrator also rejected the Agency's claim that an award of a retroactive promotion with backpay was not authorized. The Arbitrator found that the other arbitrator's award and the Authority's decision in HUD supported his finding that these grievants met the requirements of Section 13.14 as of the date of the filing of the grievance, February 9, 1988, and supported an award ordering them promoted effective on that date.

Accordingly, as the final award, the Arbitrator ordered grievants Dorsey, Manning, and Register promoted effective February 9, 1988, with appropriate backpay.

III. First Exception

A. Positions of the Parties

The Agency contends that the award is contrary to the Back Pay Act because the Arbitrator failed to make the findings necessary to support the award of backpay. The Agency states that under the Back Pay Act, an award of backpay is authorized only when an unjustified or unwarranted personnel action results in the withdrawal or reduction of an employee's compensation. The Agency maintains that in failure-to-promote cases, an arbitrator must expressly find that the grievant was affected by an unjustified or unwarranted personnel action and that such unjustified or unwarranted action directly resulted in the denial of a promotion to the grievant that the grievant otherwise would have received. The Agency argues that in this case the Arbitrator failed to make the necessary causation determination that an unjustified or unwarranted action directly resulted in the denial of promotions to the grievants that they otherwise would have received.

The Agency asserts that this causation determination was essential because the Agency claims that the Arbitrator ruled that career-ladder promotions are not automatic under the parties' agreement. The Agency argues that in view of the Arbitrator's ruling that career-ladder promotions are not automatic, the Arbitrator was required to reconstruct the evidence to determine what the responsible Agency officials would have done if the unwarranted action had not occurred, and the Arbitrator failed to do so.

The Agency also argues that to the extent the Arbitrator ruled that the arbitrator's award in HUD operated as collateral estoppel on the backpay issue, the award is still deficient. The Agency asserts that the individuals and the issues involved in the separate arbitrations were different and that, consequently, the Arbitrator could not use the doctrine of collateral estoppel to sustain his award of backpay.

The Union contends that the Arbitrator made the findings necessary to support his award of backpay. The Union also disputes the Agency's claim that the Arbitrator relied on collateral estoppel to support his award. The Union maintains that because the same collective bargaining agreement was involved in HUD, the Arbitrator used that case as a means of explaining his award.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to the Back Pay Act.

Under the Back Pay Act, an award of backpay is authorized only when the grievant has been affected by an unjustified or unwarranted agency personnel action that has resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials. Accordingly, the Authority has advised that, in order to award backpay, the arbitrator must find 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 grievants' pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. For example, Federal Deposit Insurance Corporation and National Treasury Employees Union, 35 FLRA 241, 248 (1990). In our view, the Arbitrator's award in this case satisfies the requirements of the Back Pay Act.

The Arbitrator found that grievants Dorsey, Manning, and Register had been affected by an unjustified and unwarranted personnel action when he specifically found that they were improperly denied career-ladder promotions in violation of Section 13.14 of the parties' collective bargaining agreement. Furthermore, it is not disputed that their failure to be promoted in February 1988 resulted in a loss of pay to these grievants. Nonetheless, the Agency claims that the Arbitrator failed to make the necessary causation determination that the violation of the agreement directly resulted in the denial of promotions to the grievants that they would otherwise have received. We disagree.

We find, contrary to the claim of the Agency, that the Arbitrator interpreted and applied Section 13.14 of the parties' agreement to mandate the career-ladder promotion of an employee who satisfied the specified criteria. The Agency misconstrues the Arbitrator's statement that "the Agreement does not mandate automatic, timed promotion under career ladder." Agency's Exception at 7 (quoting Interim Award at 14). That statement was provided to the Union as support for the Arbitrator's rejection of the grievants' allegations that because they had satisfied the time-in-grade and other minimum qualification requirements, they were entitled to be granted a career-ladder promotion. Instead, the Arbitrator ruled that, in order to be granted a career-ladder promotion under Section 13.14, all the specified criteria must be satisfied and not just the time-in-grade and other minimum qualification requirements. With regard to grievants Dorsey, Manning, and Register, the Arbitrator found that the Union had met its burden of showing that they had demonstrated the ability to perform the duties of the next higher grade level and that enough work was available at that grade level. Therefore, the Arbitrator found that these three grievants had satisfied all the specified criteria of Section 13.14. Based on the interpretation and application by the Arbitrator of Section 13.14 of the parties' agreement, we conclude that implicit in the Arbitrator's findings and award is the necessary finding of a causal connection between the violation of Section 13.14 and the failure of grievants Dorsey, Manning, and Register to be promoted.

The Authority has uniformly found that an arbitrator has made a properly supported award of backpay under the Back Pay Act whenever an arbitrator has determined that an agency had violated the collective bargaining agreement by failing to promote a grievant when the requirements prescribed by the agreement for a career-ladder promotion were met. American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 37 FLRA 1193, 1200 (1990); National Treasury Employees Union and U.S. Customs Service, Pacific Region, 32 FLRA 1141, 1149 (1988); National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303, 1310-11 (1987) (Watervliet Arsenal); American Federation of Government Employees, Local 17, AFL-CIO and Veterans Administration Central Office, 24 FLRA 424, 427 (1986). In Watervliet Arsenal, the Authority held that, once an agency agrees to the conditions pursuant to which a career-ladder promotion will be granted, "the ministerial act of promotion could not be withheld without a valid and lawful reason." 29 FLRA at 1310. Therefore, as the Authority ruled in National Labor Relations Board Union, Local 19 and Office of the General Counsel, National Labor Relations Board, 7 FLRA 21 (1981), when an arbitrator finds that an employee has been denied a financial entitlement provided by a collective bargaining agreement, an award of backpay "is clearly consistent with the employee's statutory entitlement 'to receive for the period for which the [unjustified and unwarranted] personnel action was in effect . . . an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred . . . .'" 7 FLRA at 26 (footnote omitted; quoting 5 U.S.C. § 5596(b)(1)(A)(i)).

In finding that the award was properly supported, we reject the Agency's claim that the Arbitrator relied on the doctrine of collateral estoppel in relation to the arbitrator's award in HUD. Accordingly, we will deny this exception.

IV. Second Exception

A. Positions of the Parties

The Agency contends that the award is based on a nonfact. The Agency notes that in the final award the Arbitrator corrected the record to find that the grievants' supervisor recommended Dorsey, Manning, and Register for promotion in September 1988. The Agency argues that the Arbitrator's finding concerning the supervisor's recommendation is clearly erroneous. The Agency maintains that as indicated by the testimony appearing on page 65 of the hearing transcript (a copy of which page the Agency has submitted as support for its exception), the supervisor testified that he did not recommend either Dorsey or Register for promotion in September 1988. The Agency further argues that the Arbitrator used this erroneous fact that Dorsey and Register were recommended for promotion as the "key" to his finding that they had demonstrated the ability to perform the duties of the GS-12 grade level. Agency's Exceptions at 9. Accordingly, the Agency claims that the award is deficient because the central fact underlying the award is clearly erroneous but for which a different result would have been reached.

The Union disputes the Agency's exception. The Union has submitted additional pages from the transcript of the supervisor's testimony, which the Union claims establishes that the supervisor testified to the "promotability" of Dorsey and Register. Union's Opposition at 3.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is based on a nonfact. In order for an award to be found deficient because it is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 889, 893 (1991).

In this case, the Agency fails to demonstrate that the Arbitrator's error regarding the promotion recommendations of grievants Dorsey and Register was central to the award. The Arbitrator concluded that grievants Dorsey and Register satisfied the requirements of Section 13.14 of the agreement, in part