49:0569(52)AR - - HUD and AFGE, Local 3380 - - 1994 FLRAdec AR - - v49 p569
[ v49 p569 ]
The decision of the Authority follows:
49 FLRA No. 52
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 21, 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 Bruce B. McIntosh 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 a grievance that alleged that the Agency's assignment of certain higher-graded work was discriminatory. For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a black female, is a GS-11 employee in the Agency's Richmond, Virginia loan management branch. In October 1992, a GS-12 employee was transferred out of the branch and his portfolio of projects was assigned to a white GS-11 female employee. The Agency's personnel department had twice rejected the recommendation of the grievant's supervisor that she be promoted to a GS-12. The most recent rejection was based on an audit of the grievant's duties, which concluded that she had not spent sufficient time on larger and complex projects. The grievant believed that the portfolio of the transferred co-worker would have enabled her to gain the experience necessary to qualify for a promotion. The grievant filed the following grievance:
On November 6, 1992, project assignments were made to a white female who is a GS-11 employee in Loan Management. The portfolio that was assigned was previously assigned to a white male, GS-12. The Supervisors have failed to correct policies and practices which have a discriminatory impact on blacks in the Loan Management branch. There is a pattern of hiring white employees at the maximum grade potential, GS-12, or assigning higher grade work to white employees. As a result, black employees have been given work assignments of a lower grade level while white employees were given higher graded work assignments. Blacks are retained in grade longer than whites.
Award at 2. The grievance was not resolved and was submitted to arbitration.
The issue as framed by the Arbitrator, was:
Whether or not the reassignment of work of a transferred employee to a white female employee constituted a discriminatory practice that prevented the [g]rievant, a black female, from performing work that would enhance her ability to be promoted.
Id. at 8-9.
The Union contended before the Arbitrator that the Agency violated applicable regulations by having no merit staffing plan. According to the Union, the only two promotion methods currently used in the Agency's Richmond office are promotion by accretion of duties and promotion pursuant to a career ladder, both exceptions to the merit staffing procedure contained in Article 13 of the parties' agreement, entitled "Merit Promotion and Internal Placement." The Union claimed that the only method for the grievant to attain a promotion is to perform higher-level work. The Union maintained that the Agency changed its system, abused its authority, and discriminated against the grievant when it assigned such higher-graded work to the white female rather than to the grievant. The Union requested that the Arbitrator order the Agency to: (1) resume publication of a staffing plan and vacancy announcements; and (2) cease and desist from selectively making assignments for discriminatory reasons to positions with promotion potential.
The Agency contended that the Arbitrator's jurisdiction was limited to the grievance itself and should not include any new matters raised at arbitration, such as promotions that have occurred in past years. Further, the Agency contended that the parties' agreement excludes from an arbitrator's authority and jurisdiction: (1) the classification of a position that does not result in a reduction in grade or pay; and (2) management's right to assign work. In this regard, the Agency maintained that except for decisions to discipline, an arbitrator lacks authority to determine the appropriateness of an exercise of a management right. The Agency contended that unless the Union had established a violation of law, regulation, or the parties' agreement, the Arbitrator had no authority to rule on matters that involve the detailing of an employee from one set of duties to another. In this regard, the Agency contended that the Union had failed to identify or establish a violation of law, regulation, or the parties' agreement.
The Agency asserted that the grievant had not been discriminated against in any respect of her employment, including assignment of work and opportunity for promotion. The Agency further argued that the Union had not established that the Agency's policies or practices had a discriminatory effect on blacks in loan management or that any promotions resulted from anything other than a career ladder promotion. The Agency also argued that it had good reasons to assign the transferred employee's portfolio to the employee in question because she was the only person without a portfolio at the time of the assignment and much of that portfolio was located in an area where that employee lived. Accordingly, the Agency contended that the grievant failed to establish a prima facie case of discrimination.
The Arbitrator found that, while he sympathized with the grievant's apparent lack of opportunity to obtain the experience necessary to obtain a promotion, the parties' agreement clearly specifies that management has reserved to itself the right to assign work. The Arbitrator concluded that it is only when such an assignment "offends the opportunity for equal employment that it violates the [agreement]." Id. at 13. The Arbitrator stated that it is the obligation of the Union and grievant to prove, by a preponderance of the evidence, that such a violation has occurred. The Arbitrator found that the evidence presented gave rise only to speculation that there may have been discriminatory motives in not assigning the transferred employee's portfolio to the grievant. Thus, the Arbitrator found that there was not a preponderance of the evidence establishing that management's decision in assigning the transferred employee's portfolio to the white female was either arbitrary or discriminatory. In so finding, the Arbitrator noted that the Agency had established "persuasive" reasons for assigning the portfolio to the white female and found it "significant" that the grievant's supervisor had twice recommended her for promotion. Id. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to law, rule, and regulation. The Union asserts that the award is deficient because the Arbitrator failed to fully address or resolve the following two matters: (1) the illegal cessation by management of staffing plans; and (2) the illegal suspension of the Agency's merit promotion plan.
The Union contends that it filed the grievance in this case because of its concern that the Agency may have abandoned all or part of its merit staffing procedures. The Union maintains that the abandonment of staffing and merit promotion plans constituted discriminatory policies and practices that have adversely affected the grievant and are contrary to the parties' agreement as well as the Statute and Agency and Government-wide regulations.
The Union argues that "[t]he Arbitrator evade[d] the argument that positions are not being announced and filled under merit procedures." Exceptions at 18. The Union maintains that without a staffing plan or similar document, Article 13 of the parties' agreement is not a viable document and, similarly, that the Agency cannot comply with Federal Personnel Manual (FPM) chapter 335 and 5 U.S.C. § 7106.(*) The Union further contends that the Arbitrator did not explain how certain Agency regulations and Article 13 of the parties' agreement have become non-operational without any negotiations with the Union. The Union asserts that the agreement and the Agency's rules and regulations are still in effect and, thus, the failure to comply with their provisions is a "breach of contract, which is illegal." Id. at 19.
B. Agency's Opposition
The Agency initially contends that in arguing that the Agency abandoned all or part of its merit staffing procedure, the Union "depart[ed] from its argument before the Arbitrator . . . ." Opposition at 5. The Agency asserts that the basis of the grievance was the alleged assignment of work to another employee rather than to the grievant. The Agency argues that it is this assignment of work that the grievance challenged as improper. The Agency maintains that because the Union raises a new position in its exceptions, the exceptions should not be considered upon review. However, even assuming review is appropriate, the Agency contends that the Union has not established that the award is deficient.
In this regard, the Agency contends that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's award. The Agency argues that the Union cited no grounds and has included no analysis in support of its exceptions that the Arbitrator departed from law, rule, or regulation. The Agency maintains that citing various portions of the parties' agreement and selected portions of regulations is not adequate support for an exception.
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.
Although the Union contends that the Arbitrator's award is contrary to law, rule, and regulation, it is primarily asserting that the award is deficient because the Arbitrator failed to fully address or resolve whether the Agency illegally ceased its staffing plans and illegally suspended its merit promotion plan. Accordingly, we construe the Union's exceptions as an allegation that the Arbitrator has failed to properly specify and address all the allegations presented.
In this case, the issue was framed by the Arbitrator. As framed, the issue was: "Whether or not the reassignment of work of a transferred employee to a white female employee constituted a discriminatory practice that prevented the [g]rievant, a black female, from performing work that would enhance her ability to be promoted." Award at 8-9. The Arbitrator concluded that a preponderance of the evidence did not establish that the assignment of the transferred employee's portfolio to the white female rather than to the grievant was either arbitrary or discriminatory.
In the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. See, for example, U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94, 97 (1991) (where the arbitrator framed the issue as whether the agency violated three specific provisions of its merit placement plan and resolved the grievance on that basis, the Authority denied the union's exception that the award was deficient because the arbitrator refused to consider other provisions of the placement plan). Here, the award is directly responsive to the issue as the Arbitrator framed it. Consequently, the Union has not demonstrated that the Arbitrator failed to properly resolve the issue involved in the grievance. See American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, 12th MSSQ/MSCE, Randolph Air Force Base, Texas, 48 FLRA 1391, 1393 (1994).
Further, even assuming the Union properly raised the issues concerning the staffing plans and merit promotion plan before the Arbitrator, an arbitrator's failure to set forth specific findings, or to specify and discuss all allegations in a griev