45:0233(20)AR - - AFGE Local 12 and DOL, Benefits Review Board, Washington, DC - - 1992 FLRAdec AR - - v45 p233

[ v45 p233 ]
The decision of the Authority follows:

45 FLRA No. 20













June 18, 1992

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 Charles Feigenbaum filed by the Union 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance of an employee who claimed that she was not promoted for non-work related reasons. The Union's exceptions do not demonstrate that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a GS-11 staff attorney responsible for preparing legal memoranda relating to appeals from administrative law judge decisions on applications for disability benefits under the Black Lung Benefits Act and other statutes administered by the Office of Workers

Compensation Programs. Although the grievant began employment as a GS-11 law clerk, her position was converted to a staff attorney position in December 1988. She is in a career program that includes a 4-month training period and offers employees possible promotion to GS-12 after 1 year at grade GS-11, if the employee demonstrates the ability to perform at the higher grade level. Employees may be promoted from GS-12 to GS-13 after another year if they demonstrate the capability to perform at the grade GS-13 level.

The grievant completed 1 year of service at the GS-11 level in September 1989, at which time her annual performance appraisal was due. Because of some problems that arose from work that the grievant had performed for her second-line supervisor, who was the division chief, the grievant agreed with her first-line supervisor to defer the appraisal until December 1989. In December 1989, the grievant was appraised and given a rating of acceptable. However, she was also informed that she would not be promoted to GS-12 at that time. The grievant filed a grievance protesting the Agency's refusal to promote her to GS-12. The grievance was not resolved and was submitted to arbitration on the following issues:

1. Is the present dispute arbitrable?

2. If so, was the [g]rievant improperly refused promotion to Attorney Advisor, GS-12, in December 1989?

Award at 2.

The Arbitrator ruled that the matter was arbitrable under the parties' collective bargaining agreement and addressed the merits of the grievance. Before the Arbitrator, the Union claimed that "[t]he [g]rievant was denied promotion based on matters which do not pertain to her work performance, that is, racial considerations, personality conflicts, the breakdown of friendship between the [g]rievant and [her first-line supervisor], and retaliation for having sought Union representation." Id. at 26. The Union also argued that the Agency improperly considered work performed during the grievant's training period and that the Agency relied too heavily on a case that did not reflect the typical work performed by the grievant. Further, the Union claimed that a memorandum written by the first-line supervisor discussing the grievant's work was not prepared until shortly before the arbitration hearing held in June 1990, rather than on December 19, 1989, as asserted by the supervisor. The Agency denied the Union's contentions and asserted that the Union failed to show that the grievant was not promoted because of personal, nonwork-related considerations.

The Arbitrator examined the testimony of the grievant, the first-line supervisor, the division chief, and various coworkers of the grievant. Based in part on his credibility determinations, the Arbitrator found that the testimony of witnesses at the hearing failed to support the grievant's claim that she was not promoted to GS-12 because of racial considerations. Rather, the Arbitrator concluded that the grievant's claims and related testimony that she was held to a higher standard by the first-line supervisor and that the second-line supervisor had made racist remarks constituted "mere assertions and cannot serve as a basis for a finding of non-promotion based on racial grounds." Id. at 31. The Arbitrator also found no support in the record for the grievant's claim that she was not promoted because of a personality conflict and a breakdown in a personal relationship between the grievant and the first-line supervisor. The Arbitrator concluded that the deterioration in the relationship between the grievant and the first-line supervisor was not one of the reasons for the failure to promote the grievant. Rather, he concluded that "the promotion was denied for work-related reasons[.]" Id. Further, the Arbitrator found nothing in the record to support the grievant's claim of retaliation for seeking assistance from the Union.

The Arbitrator rejected the grievant's claim that in an interim performance appraisal meeting in April 1989 she was told that she was performing satisfactorily and that a memorandum prepared by the first-line supervisor indicating that there were deficiencies in the grievant's performance was not prepared until after that meeting. Regarding the credibility of the first-line supervisor, the Arbitrator found that the supervisor had improperly discussed the grievant's performance with other employees, despite her denial that she had done so. Accordingly, the Arbitrator stated that he would credit the supervisor's testimony only "when it is corroborated by other testimony or documentary evidence, or when it otherwise presents the best explanation for the facts under consideration." Id. at 35.

The Arbitrator found that the first-line supervisor wanted the grievant to succeed, but he also found that the supervisor was not satisfied with the grievant's work and, for that reason, there was agreement to postpone the grievant's performance appraisal until December 1989. Further, the Arbitrator found that the decision to extend the appraisal period "had nothing to do with a promotion." Id. at 37. Rather, the Arbitrator found that the decision related to the grievant's performance appraisal and "whether or not the [g]rievant is to be retained in her position." Id. (emphasis deleted).

The Union asserted to the Arbitrator that there were "improprieties in connection with the cases and documentation" used by the Agency to show that the grievant was not entitled to a promotion. Id. The Union claimed that the Agency should not have considered cases that the grievant worked on during her training period. However, the Arbitrator found that "there is nothing in the record to indicate that training cases may not be given consideration when making promotion decisions." Id. at 38. The Arbitrator also rejected the Union's assertion that the grievant's work in the case reviewed by the division chief received undue weight in the decision not to promote the grievant.

The Union contended that a memorandum dated December 19, 1989, from the first-line supervisor to the second-line supervisor, giving the reasons for not promoting the grievant, was not written on December 19, 1989, but was written shortly before the arbitration hearing. The Arbitrator found that, although the memorandum was not given to the grievant or her Union representative, there was no evidence to sustain the Union's contention that the memorandum was not written on December 19, 1989. The Arbitrator also noted that he had granted the Union a continuance of 21 days because it had not seen the memorandum prior to the hearing.

The Arbitrator rejected the Union's contention that it was hindered in presenting its case because the Agency refused to make available records in certain cases that had been assigned to the grievant. The Arbitrator held that the case records presented no surprise to the Union or the grievant because the grievant had worked on those cases and should have been aware of the comments by the supervisor regarding the grievant's performance. The Arbitrator stated that the Agency was not required to show that the grievant failed to demonstrate performance at the GS-12 level, but, rather, in the absence of any finding of impropriety on the part of the Agency, the Union was required "to affirmatively show that the [g]rievant demonstrated the ability to do higher level work." Id. at 41. The Arbitrator concluded that the Union had failed to meet that burden. Finally, the Arbitrator rejected the Union's contention that the presence of the Agency's Director of Administration at the hearing served "to help shape the testimony of management witness and to chill the testimony of Union witnesses employed at [the Agency]." Id. The Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union

The Union contends that "the [A]rbitrator made findings not supported by the record evidence and made conclusions which are contrary to [G]overnment personnel regulations." Exceptions at 1. The Union asserts that the Arbitrator erred by accepting into evidence the memorandum dated December 19, 1989, in which the grievant's first-line supervisor explained to the second-line supervisor reasons for not promoting the grievant to GS-12, based on 44 cases that the grievant had completed during the appraisal period. The Union maintains that the Arbitrator accepted the document over its objection and that the Agency failed to produce the pleadings in the cases discussed in the memorandum. Consequently, the Union asserts, "the Union, as well as the [A]rbitrator, were left to rely on management's self-serving attestation that errors in the grievant's analysis of the pleadings were found by her supervisors." Id. at 5.

The Union also contends that the Arbitrator erred by holding that the grievant's supervisors could rely on cases that the grievant completed during her 4-month training period. The Union states that Section B2-3(C)(2)(c), Department of Labor Supplement appendix B, Federal Personnel Manual (FPM) 430, "is quite clear on the point that the performance rating of record may not take into consideration areas of work not covered by the performance plan." Id. at 6-7.

Finally, the Union contends that the Arbitrator made contradictory findings of fact regarding the effect of the supervisors' consideration of two specific cases on the promotion decision. The Union maintains that, although the Arbitrator found that the first-line supervisor's attitude toward the grievant changed after the grievant worked on one of the cases, the Arbitrator later ruled that the grievant's work on the cases did not affect the decision not to promote her. The Union argues that, if the first-line supervisor's opinion of the grievant changed after the grievant's work on the two cases, "then these cases played a major role in the determination of promotion." Id. at 7. The Union also maintains that the Agency failed to give the grievant a "cumulative" performance rating as required by the Department of Labor Supplement to the FPM. Id. at 8.

B. The Agency

The Agency regards the Union's exception concerning the Arbitrator's acceptance of the December 19, 1989, memorandum as an allegation that the Union was denied a fair hearing. The Agency contends that the Union has failed to establish that it was denied a fair hearing and maintains that the Union is merely disagreeing with the Arbitrator's findings and conclusions. The Agency notes that the Arbitrator allowed a 3-week continuance in the arbitration proceeding to offset any surprise to the Union caused by introduction of the memorandum and denies that the Union was harmed in presenting its case by the introduction of the memorandum.

The Agency also denies that the Union was prejudiced when the Agency failed to produce the records of the cases discussed in the December 19, 1989, memorandum. The Agency explains that the case records had been returned to various regional offices and that substantial effort and time would have been required to retrieve the documents. The Agency asserts that regardless of any surprise caused by introduction of the memorandum, the Union was "on notice that the grievant was den