48:1337(139)AR - - NLRB, Washington, D.C and NLRB Union - - 1994 FLRAdec AR - - v48 p1337
[ v48 p1337 ]
The decision of the Authority follows:
48 FLRA No. 139
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL LABOR RELATIONS BOARD
NATIONAL LABOR RELATIONS BOARD UNION
January 5, 1994
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 Robert G. Williams 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 issued a supplemental award after the Authority set aside his original award and remanded the case to the parties in National Labor Relations Board and National Labor Relations Board Union, 44 FLRA 1223 (1992) (NLRB I). In his supplemental award, the Arbitrator denied the Union's grievance over the nonselection of an employee for a supervisory position because of alleged sex discrimination. For the following reasons, we find that the Union has failed to establish that the Arbitrator's award is deficient. The Union's exceptions will be denied.
II. Background and Arbitrator's Award
A female employee of the Agency filed a grievance alleging that she was not selected for promotion to a supervisory attorney position because of sex discrimination.
The Arbitrator, applying the criteria for determining the presence of unlawful discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas), found that the grievant presented a prima facie case of discrimination. The Arbitrator then found that the Agency did not provide an objective basis for selecting a male applicant rather than the grievant and, therefore, failed to rebut the Union's prima facie case. Among other things, the Arbitrator ordered the Agency to develop objective selection standards and to make a new selection by applying those standards to the three candidates who were on the list of best-qualified applicants when the original selection was made.
The Union and the Agency filed exceptions to the Arbitrator's award with the Authority. In NLRB I, we found that the Arbitrator's award was deficient and stated:
[T]he Arbitrator erred, as a matter of law, by finding that the reasons offered by the Agency for its selection action did not set forth a legitimate, nondiscriminatory reason for the Agency's decision under the standards set forth in McDonnell Douglas. Further, the Arbitrator did not make a finding as to whether the reasons proffered by the Agency for its selection decision were pretextual. Consequently, the award is deficient and will be set aside and the case remanded to the parties for appropriate action in accordance with this decision.
NLRB I, 44 FLRA at 1233.
We found, among other things, that the Arbitrator erred by rejecting the Agency's reasons for its selection decision on the ground that those reasons were subjective. We noted that, following the Agency's articulation of nondiscriminatory reasons for its selection decision, "the grievant was entitled to 'be afforded a fair opportunity to show that the Agency's stated reason[s] for [her] rejection [were] in fact pretext.'" Id. at 1236 (quoting McDonnell Douglas, 411 U.S. at 804). We held that the Arbitrator should have decided whether the Agency's reasons for the selection action were the real reasons or were a pretext for discrimination. Consequently, we set aside the Arbitrator's award and remanded the case to the parties for resubmission to the Arbitrator for a determination on that issue consistent with the analysis set forth in McDonnell Douglas and with our decision.
In his supplemental award, the Arbitrator noted that, after the decision in NLRB I, he was not contacted by the parties for almost a year until April 13, 1993, when the Union filed a motion with him to reopen the case. He stated that the Union requested that the Agency be allowed to present further evidence concerning its reasons for not selecting the grievant and that the Union be allowed to present evidence to rebut the Agency's arguments. The Agency opposed the Union's request and asserted that the record developed at the original hearing was sufficient for the Arbitrator's resolution of the issue of pretext. The Agency also contended that the Arbitrator could not reopen the record based on a unilateral motion by the Union. In denying the Union's motion to reopen the hearing, the Arbitrator noted that "[n]either party has proffered any new evidence regarding the Agency's explanations for selecting [the male applicant] over the [g]rievant" and he ruled that "in the absence of newly discovered evidence, the record is complete." Supplemental Award at 3.
Noting the Authority's requirement that he address the issue of pretext, the Arbitrator stated that in his original award he had "already explained why the [Agency's] subjective explanation does not pass muster." Id. at 5. The Arbitrator maintained that, in his opinion, if the reasons for the Agency's action were merely subjective reasons, they must necessarily be pretextual. According to the Arbitrator, where an agency's reasons for denying discrimination are "subjective,"
[t]he very evidence that proves discrimination is declared "lawful" under [Page v. Bolger, 645 F.2d 227 (4th Cir.) (en banc), cert. denied 454 U.S. 892 (1981) (Page)]. An employee then is required to prove that the now "lawful" explanation is a "pretext." The only evidence of "pretext" is the employer's subjective denial. All subjective denials and explanations are "pretexts" because by definition they do not provide any objective basis for distinguishing candidates. Proof of discrimination is no longer sufficient to prove discrimination under Page.
Id. at 5-6.
The Arbitrator added that, although he had "prepared further discussion to convince the [Authority] and the [c]ourt of their error," such discussion was "fruitless and omitted." Id. at 6. However, he held that he was "bound to follow the erroneous process established by the [c]ourt." Id. The Arbitrator denied the grievance.
III. First Exception
A. Positions of the Parties
1. The Union
The Union asserts that the Arbitrator's award is deficient because the Arbitrator refused to reopen the hearing to receive evidence concerning whether the Agency's reasons for selecting a person other than the grievant for the supervisory position were pretextual. The Union maintains that the Arbitrator improperly relied on the assumption that he could not reopen the hearing based on the Union's unilateral motion. The Union contends that the circumstances of the case and the Authority's remand of the case to the parties constitute an exception to the general rule that, unless both parties request an arbitrator to reopen the hearing, an arbitrator is precluded from reopening the hearing and modifying an award which the Authority has set aside. Thus, the Union contends, the Authority's remand of the case to the parties provided the Arbitrator with the authority to reopen the hearing record. The Union states that although "the Authority certainly did not mandate that the Arbitrator reopen the hearing, neither did the Authority preclude it." Exceptions at 5.
The Union contends that, in making his decision not to reopen the hearing "in the absence of 'newly discovered evidence,' the Arbitrator is also in error." Id. The Union maintains that the Authority's remand did not limit the Arbitrator to the consideration of newly discovered evidence. The Union cites Parker v. Department of Housing and Urban Development, 891 F.2d 316 (D.C. Cir. 1989) (Parker) for the proposition that courts of appeals have remanded similar cases to lower courts for further findings of fact concerning issues of pretext. The Union maintains that the Arbitrator "has not engaged in the requisite detailed factual analysis" and has "prevented the Union from introducing evidence that would permit [him] to render a reasoned analysis." Id. at 6.
2. The Agency
The Agency denies that the Arbitrator relied on a mistaken assumption when he refused to reopen the hearing. The Agency contends that the reason for the Arbitrator's refusal to reopen the hearing was the Arbitrator's finding that "the parties had a full opportunity to present affirmative and rebuttal evidence" and that, "[i]n the absence of any newly discovered evidence, the Arbitrator found that the record was complete." Opposition at 3.
The Agency contends that both parties made arguments concerning the McDonnell Douglas criteria before the Arbitrator in the arbitration hearing and that the Union was aware of and made arguments concerning pretext in addition to its contention that the Agency had failed to rebut the prima facie showing of discrimination.
The Agency states that it "continues to adhere to its argument . . . that the Arbitrator cannot reopen the record based on the unilateral motion of one party." Id. at 5. The Agency notes that nothing in the Authority's remand of the case to the parties "mandates or even envisions more hearing on the issue that had already been fully litigated." Id. With respect to the Union's reliance on Parker, the Agency maintains that that case is inapposite and that it does not support the Union's contention that the record should be reopened.
B. Analysis and Conclusions
We construe the Union's exception as an allegation that the Arbitrator failed to conduct a fair hearing by denying the Union's motion to reopen the record to hear arguments concerning pretext. The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See, for example, American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 46 FLRA 1191, 1195 (1993). Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. See, for example, U.S. Department of Defense Dependent Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA 3, 8 (1993) (DODDS).
We conclude that the Union has not established that the Arbitrator acted improperly so as to deny the Union a fundamentally fair hearing. The Union argues that the Arbitrator erred when he refused to reopen the record and hold a hearing on the issue of pretext and that he denied the Union "the opportunity to present evidence to attempt to prove that the [A]gency's rationale for the [grievant's] nonselection was pretextual." Exceptions at 6. However, as the Union has conceded, the remand in NLRB I contained no requirement that the Arbitrator reopen the hearing. The remand merely required that the Arbitrator make a decision on the issue of pretext "consistent with the analysis set forth in McDonnell Douglas and consistent with this decision." 44 FLRA at 1237 (footnote omitted). The Arbitrator decided that the record developed at the original hearing provided a sufficient basis for resolving the issue of pretext. He noted that the Union, in its request to reopen the hearing, had not cited any new evidence as to pretext that should be added to the original record. Thus, the Arbitrator did not fail to provide the Union with a fair hearing on the evidence. See DODDS, 47 FLRA at 8 (arbitrator properly denied motion to reopen the record because there was an insufficient demonstration that the evidence the union sought to introduce would materially affect the outcome of the case). See also Ramey v. Bowsher, 915 F.2d 731, 736 (D.C. Cir. 1990) (denying appellant's contention that lower court erred in finding that further briefing on sex discrimination claim was not required; trial judge provided full opportunity for appellant to make arguments and present evidence).
Further, the Union has not shown that decisions of the Federal courts required the Arbitrator to reopen the hearing on the issue of pretext. In particular, the Union's reliance on Parker is misplaced. The court in Parker did not hold that additional hearings on the issue of pretext are required in all such cases. Rather, the court only observed that the lower court had applied an incorrect standard and had failed to make sufficient factual findings regarding disparate treatment. The court ruled that "[b]ecause the district court did not articulate the appropriate legal standards in this case, we are unable to discern whether it provided an acceptable basis for its decision." Parker, 891 F.2d at 322. The court also stated that "more detailed findings of fact would have been useful in providing a clear basis for the court's reasoning." Id. at 323.
In the present case, the Union has failed to show that the Arbitrator was not fully apprised of the facts in the case before him and that he was not able to reach a decision on the issue of pretext based on the original record. The Arbitrator found that the record established in the original hearing was complete and sufficient for making a determination as to pretext. He also found that the Union had not proffered any new evidence that would add to the record and affect the eventual outcome of the case. We note that the Union did not request the Arbitrator to reopen the hearing so that it could present evidence relating to pretext. Rather, the Union asked that the hearing be reopened so that the Agency could present evidence which the Union could then rebut. However, the burden was on the Union to prove pretext under the McDonnell Douglas criteria. Therefore, we find nothing in the Arbitrator's refusal to reopen the record and hold a further hearing on the issue of pretext that denied the Union a fair hearing or was otherwise improper. The Union is merely disagreeing with the Arbitrator's evaluation of the evidence. As such, this exception provides no basis for finding the award deficient. See DODDS, 47 FLRA at 8.
IV. Second Exception
A. Positions of the Parties
1. The Union
The Union contends that the Arbitrator's award is contrary to law because the Arbitrator failed to apply the proper legal standards for determining pretext. The Union contends that the Arbitrator misinterpreted Page when he ruled that subjective explanations by the Agency must be accepted as proof that the Agency's reasons for not selecting the grievant were not discriminatory. The Union maintains that the Arbitrator "failed to perform the required close scrutiny of the Agency's asserted nondiscriminatory reason for its employment decision." Exceptions at 7.
The Union asserts that the Agency failed to establish that its reasons for not selecting the grievant in this case were not pretextual. The Union maintains that the reasons given by the Regional Director for selecting a male applicant for the supervisory position rather than the grievant constituted nothing more than conclusions and that "the Regional Director's own description of the relative strengths and weaknesses of the candidates is inconsistent with his conclusion." Id. The Union asserts that the Arbitrator failed "to address the reasonable probability raised by this inconsistency, that is, that the decision of the Regional Director was motivated by a subjective preference for and reliance on the customary presence of males in supervisory positions." Id. at 12. The Union also contends that the Agency did not follow its affirmative action plan by attempting to eliminate the underrepresentation of women in supervisory positions. The Union requests that the case be remanded to the Arbitrator in order for him to reopen the record to receive evidence of pretext and make findings of fact as to pretext.
2. The Agency
The Agency maintains that the Arbitrator's award on remand is consistent with the requirements set forth in McDonnell Douglas and asserts that the Arbitrator made a finding concerning pretext. The Agency contends that the Arbitrator considered the record in the case and that he did not find that the Agency's motives in not selecting the grievant were discriminatory or pretextual. The Agency notes that the Arbitrator merely questioned the validity of the system used by the Agency which permitted the use of subjective assessments of applicants for positions rather than requiring the use of objective criteria. The Agency also states that "the Union never questioned the credibility of the Regional Director." Opposition at 8. The Agency asserts that there is no legal or contractual requirement for a more detailed decision by the Arbitrator on the issue of pretext and that the Union is merely disagreeing with the Arbitrator's findings.
B. Analysis and Conclusions
We conclude that the Union has not established that the Arbitrator's supplemental award is contrary to law on the ground that the Arbitrator failed to apply the proper legal standards for determining whether the Agency's reasons for not selecting the grievant were pretextual.
As we stated in NLRB I, the McDonnell Douglas criteria require that "[f]ollowing the Agency's articulation of legitimate, nondiscriminatory reasons for its selection decision, the grievant [be] entitled to 'be afforded a fair opportunity to show that the Agency's stated reason[s] for [her] rejection [were] in fact pretext.'" 44 FLRA at 1237 (citing McDonnell Douglas, 411 U.S. at 804). See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981) (Burdine) (the Supreme Court held that, after a defendant has rebutted a plaintiff's prima facie case of discrimination, "the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination").
In the present case, the Arbitrator was required on remand to make a determination as to pretext consistent with law and our decision. We recognize that the Arbitrator disagreed with the Authority's rejection of his position concerning the use of subjective standards. However, the Arbitrator did not make a finding that the Agency's reasons for selecting the male applicant rather than the grievant, although subjective and in his view unacceptable, were pretextual under the law as stated by the Authority in remanding the grievance. Further, the record shows that the Union was afforded the opportunity in the original hearing to prove to the Arbitrator that the Agency's reasons for the selection action were pretextual. We conclude, notwithstanding the Arbitrator's view concerning the use of subjective standards, that the Arbitrator's supplemental award resolved the issue of pretext consistent with law and our decision and, consequently, the award is not deficient as contrary to law.
Thus, although the Arbitrator indicated that he disagreed with the court's decision in Page and the Authority's decision in NLRB I, he implicitly concluded, based on the record, that the Union had failed to establish that the Agency's reason for selecting the male applicant was a pretext for discrimination against the grievant. The issue before the Arbitrator was not whether the Agency relied on subjective reasons instead of objective standards in selecting the selectee from the best-qualified list of applicants. Rather the issue was whether the Agency's stated reasons, subjective or not, were a pretext for discrimination against the grievant because of her gender. There is no prohibition under McDonnell Douglas and the cases following it on the use of subjective considerations for a management decision so long as those considerations are not discriminatory. The Agency has "discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria." Burdine, 450 U.S. at 261.
The Arbitrator did not find that the grievant in this case and the selected employee were not equally qualified. Although the Arbitrator regarded the Agency's reasons for the selection of the male employee as subjective, and despite his view that all subjective reasons are by definition unacceptable, he applied the law as stated by the Authority in remanding the grievance and did not find that the Agency's reasons were pretextual. Rather, by denying the grievance, the Arbitrator implicitly found that the Union had not demonstrated that the Agency's subjective reasons amounted to pretext. We find nothing in the record to support the conclusion that the Arbitrator erred in denying the grievance. The Union is merely disagreeing with the Arbitrator's evaluation of the evidence and his conclusions. Therefore, this exception provides no basis for finding the award deficient. See American Federati