41:1420(110)AR - - Treasury, Customs Service, Pembina District, Pembina, ND and NTEU Chapter 157 - - 1991 FLRAdec AR - - v41 p1420



[ v41 p1420 ]
41:1420(110)AR
The decision of the Authority follows:


41 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

PEMBINA DISTRICT

PEMBINA, NORTH DAKOTA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 157

(Union)

0-AR-2044

DECISION

August 29, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John J. Flagler 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 grievant is a Union official who is employed at district headquarters. The grievant protested the Agency's failure to select him for promotion to a GS-11 position at district headquarters. The Agency offered him a promotion to a GS-11 position located at another duty station. The Arbitrator found that the Agency discriminated against the grievant because of his Union activity and ordered the Agency to promote the grievant to GS-11 with backpay at district headquarters.

The Agency filed exceptions alleging that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, and is based on nonfacts. For the following reasons, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is a GS-9 customs inspector assigned to the Pembina District Headquarters at Pembina, North Dakota. He has been active in the Union, serving as vice president in 1988 and president since June 1989. He has filed various grievances including grievances over his own performance ratings. In June 1989, he filed a grievance over the reduction of his annual performance rating from "excellent" to "fully satisfactory." Award at 3.

In April 1989, the Agency announced a number of GS-11 senior customs inspector vacancies with duty stations at Pembina and other locations within the district. The grievant applied for one of the vacancies and was selected. The duty station of the position for which he was selected is located at Portal, North Dakota, 400 miles from Pembina. The promotion was conditioned on his relocation to Portal. The grievant protested the location and informed the Agency that he would accept the promotion to GS-11, but only at the Pembina duty station. He filed a grievance alleging that the Agency discriminated against him on the basis of his Union activities by not selecting him for a GS-11 position at Pembina. The parties did not resolve the grievance and it was submitted to arbitration.

Each party submitted a different statement of the issues to the Arbitrator. The Arbitrator chose the Union's version and stated the issues as follows:

1. Was Customs' refusal to select the Grievant for the Senior Customs Inspector, GS-11, in Pembina, North Dakota in retaliation for his protected union activities and a result of anti-union animus? If so, what is the remedy?

2. Was the selection and subsequent assignment of the Grievant to the Portal, North Dakota post of duty (400 miles away from Pembina) a de facto reassignment requiring that the reassignment procedures outlined in Article 20 be applied? Was Article 20 violated by the failure of Customs to follow these procedures? If so, what is the remedy?

Id. at 2.

The Union contended before the Arbitrator that there was a causal link between the grievant's Union activity and his selection for a promotion that required reassignment from Pembina to Portal despite the grievant's expressed desire to be promoted and remain at Pembina. The Agency contended that the grievant was not reassigned but, rather, promoted to a vacancy in Portal for which he applied. The Agency denied that the grievant had expressed a preference for a promotion at Pembina and argued that the grievant "had stated a willingness to be assigned anywhere in the United States." Id. at 14.

The Arbitrator stated that "[i]n order to establish that the Agency's actions were taken in reprisal for protected activity, the Union must show that the Grievant was engaged in protected activity, the Agency had knowledge of such activity, and the Agency acted because of anti-union animus." Id. at 15, citing Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 956, 968-69 (1985).

The Arbitrator noted that the Union had shown that the grievant had been actively engaged in Union activities and that management officials, including the District Director who made the selections for promotion, were aware of those Union activities. The Arbitrator stated that the Union's case turned on whether the Agency "promoted the grievant to the Portal position out of anti-union animus." Id. The Arbitrator found that the Union "succeeded in creating a rebuttable presumption" of union animus. Id. at 16.

The Arbitrator made the following findings based on the evidence: (1) management was aware of and disturbed by the grievant's Union activities; (2) management's stated reason that the grievant was selected for a position at Portal--that the grievant was the best qualified for that position--was contradicted by the lowered performance appraisal given the grievant before the positions were announced; (3) an employee who had a lower performance rating was on the list for a second round of promotions while the grievant was not on that list; and (4) management knew that a relocation to Portal would create problems for the grievant in performing his Union duties and would be adverse to him. The Arbitrator stated that because of his conclusion that the grievant was discriminated against by being promoted to a position in Portal, the issue of reassignment in violation of the agreement was moot and need not be addressed.

The Arbitrator made the following award:

1. Based on the foregoing findings and conclusions, the Agency shall grant the Grievant a retroactive promotion to the GS-11 grade, with backpay to the time he would have received such promotion save and except that the Agency improperly made such promotion conditional on his relocation to Portal, North Dakota.

2. The Agency shall compensate the Grievant retroactively for the difference between his GS-9 salary and that of the GS-11 for the promotional position.

3. Absent evidence that he lacked qualifications for one of the openings in Pembina, North Dakota, the Grievant shall be granted the GS-11 promotion to that duty station.

Id. at 20.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is deficient because it fails to meet the criteria for payment of backpay under the Back Pay Act. In support of its contention, the Agency claims that there was no unjustified or unwarranted personnel action committed by management against the grievant and maintains that the grievant was not denied any benefits for which backpay could be paid. The Agency claims that although the Arbitrator found that the grievant's selection to the position at Portal constituted anti-union discrimination, there was no finding that the Agency's failure to select the grievant for a position at Pembina was the result of anti-union discrimination. The Agency maintains that the grievant received the promotion for which he applied.

The Agency contends that the selection of the grievant for a position at Portal did not reduce or withdraw any of his pay, allowances or differentials. Rather, the Agency asserts, any loss of compensation was the result of the grievant's refusal to accept the promotion at Portal. The Agency denies that there is a direct connection between any improper action by the Agency and the failure of the grievant to be selected for a position at Pembina and maintains that the grievant's expectation that he would be promoted to a position at Pembina did not deny him a benefit for which he can obtain relief under the Back Pay Act.

The Agency also asserts that the award is deficient because it is based on gross mistakes of fact. The Agency contends that the Arbitrator relied on erroneous circumstantial evidence to find that anti-union discrimination was the cause of the selection of the grievant for the GS-11 position in Portal. Among the alleged errors cited by the Agency are the Arbitrator's findings concerning the grievant's lower performance ratings and the Arbitrator's finding that the grievant had indicated to the Agency his desire to be promoted to a GS-11 position at Pembina. The Agency contends that the Arbitrator's error on both those findings is clear from the record. The Agency also contends that the Arbitrator erred in finding that Agency management officials were antagonistic toward the grievant on account of his Union activities. The Agency asserts that the Arbitrator's findings based on erroneous circumstantial evidence constitute gross mistakes of fact and that the Arbitrator would have reached a different conclusion if he had not relied on the erroneous evidence.

B. The Union

The Union contends that the Arbitrator correctly found that the grievant was discriminated against because of his activities on behalf of the Union. The Union asserts that the Agency's exceptions are without merit because the award is not based on mistakes of fact and meets the requirements of the Back Pay Act.

The Union asserts that the Agency has failed to establish that the Arbitrator made gross mistakes of fact concerning the lowering of the grievant's performance rating. The Union denies the Agency's allegation that management did not know that the offer of a position in Portal would be considered "adverse" to the grievant and further asserts that this matter is not a "central fact relied on by the Arbitrator." Opposition at 11. The Union also disputes the Agency's contention that the Arbitrator mistakenly found that management officials promoted the grievant to a position in Portal because of union animus.

With respect to the Agency's exception that the award is contrary to the Back Pay Act, the Union contends that the Arbitrator properly found that the Agency's action making the grievant's promotion conditional on his relocation to Portal in reprisal for his Union activity constituted an unjustified or unwarranted personnel action. The Union contends that the Agency's action violated both the parties' agreement and the Statute. The Union further asserts that the Arbitrator's award meets the requirements of the Back Pay Act that the Agency's improper personnel action directly resulted in the loss of the grievant's pay and allowances and that such loss would not have occurred otherwise. The Union contends that as the grievant was one of four best-qualified applicants selected for four vacant positions, the Arbitrator "effectively found" that he would have been promoted to a position in Pembina "save and except" for the Agency's improper action. Id. at 14.

IV. Analysis and Conclusions

A. The Award Complies with the Back Pay Act

The Agency asserts that the Arbitrator's award is contrary to the Back Pay Act because there was no unjustified or unwarranted personnel action taken against the grievant and because the Arbitrator did not make the required finding that "but for" an unjustified or unwarranted personnel action, the grievant would not have been selected for promotion to a position at Pembina. The Agency also denies that the grievant suffered a withdrawal or reduction in pay. We disagree with the Agency's contentions and find that the Arbitrator's award complies fully with the requirements of 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 grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514 (1991) (VA Cleveland).

The Arbitrator specifically found that the Agency discriminated against the grievant by offering him a promotion that was contingent on his relocation to a duty station that he had not requested. Further, the Arbitrator found that the relocation of the grievant would interfere with the performance of his duties as president of the Union. The Arbitrator concluded that the Agency's anti-union discrimination involving the grievant's promotion violated the applicable provisions of the parties' collective bargaining agreement. Violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act and the Arbitrator's determination that the Agency violated the parties' collective bargaining agreement satisfies the requirement for an unjustified or unwarranted personnel action in this case. See U.S. Department of Veterans Affairs, Medical Center, Marion, Illinois and American Federation of Government Employees, Local 2483, 38 FLRA 270, 274 (1990) (arbitrator's finding that a detail was improper under the parties' agreement constituted requisite finding under the Back Pay Act that the grievant was affected by an unjustified or unwarranted personnel action).

Moreover, the Arbitrator effectively made the required finding that the Agency's discrimination against the grievant directly resulted in the grievant's failure to receive a promotion at Pembina and that he would have received a promotion at Pembina but for the Agency's improper action. The Arbitrator stated that "the Agency shall grant the Grievant a retroactive promotion to the GS-11 grade, with backpay to the time he would have received such promotion save and except that the Agency improperly made such promotion conditional on his relocation to Portal, North Dakota." Award at 20. The Authority has held that the requirement of a "but for" finding under the Back Pay Act does not require the specific recitation of certain words and phrases, such as "but for," but rather a finding of a direct causal relationship between an agency's improper actions and an adverse effect on an employee. See VA Cleveland, 41 FLRA at 514. The Arbitrator's statement quoted above satisfies the requirement of a finding of a direct causal relationship between the Agency's improper action and the denial to the grievant of the pay and benefits of a GS-11 position.

Finally, we hold, contrary to the Agency's contentions, that the grievant was deprived of pay, benefits, and allowances for purposes of the Back Pay Act. The Arbitrator found that, because of the Agency's unlawful anti-union discrimination, the grievant was offered a promotion on the condition that he relocate to a duty station that was undesirable to him. The grievant refused the promotion that was based on that unlawful condition and consequently did not receive the promotion. The Authority has long held that retroactive promotion with backpay is an appropriate remedy for the loss of pay and benefits suffered by employees affected by unjustified or unwarranted personnel actions. See U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410 (1990) (Authority denied agency exceptions to an award of retroactive promotion with backpay to a grievant who was denied a promotion on the basis of race and national origin).

B. The Award Is Not Based on Nonfacts

We will find an arbitration award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA No. 53 (1991). We construe the Agency's assertion that the Arbitrator's award is deficient because it is based on gross mistakes of fact as an exception that the award is deficient because it is based on nonfacts. We conclude that the Agency has failed to establish that the award is deficient on that basis.

The Agency has not demonstrated that any of the facts relied on by the Arbitrator are clearly erroneous. The Arbitrator based his conclusions on the evidence in the record before him. The Agency's arguments that the Arbitrator erred in concluding that the grievant was not promoted to a position at Pembina on account of anti-union discrimination constitute nothing more than an attempt to relitigate the merits of the grievance and disagreement with the Arbitrator's evaluation of the evidence. Such arguments provide no basis for finding the award deficient. See U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 39 FLRA 1103, 1107 (1991).

Further, even if the Agency had established that the Arbitrator's findings of fact concerning the grievant's lowered performance rating, his indicated preference for a position at Pembina, and the perceived animosity of management toward the grievant were erroneous, the Agency has not demonstrated that those findings were the central facts underlying the award so that the Arbitrator would have reached a different result. The Agency's assertio