American Federation of Government Employees, Local 3615 and Social Security Administration, Office of Hearings and Appeals

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55 FLRA No. 187

LOCAL 3615







Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members

Decision by Chair Segal for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Irving N. Tranen 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 Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement when it failed to promote the grievants and/or provide the grievants with opportunities for promotion. The Arbitrator determined that the Agency did not violate the agreement. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Agency developed a Short-Term Disability Project to help reduce its backlog of claims for disability insurance benefits pending in the hearing offices of the Office of Hearings and Appeals (OHA). The Senior Attorney Program, developed in connection with the Short-Term Disability Project, allowed some attorney advisors in the OHA hearing offices to review incoming requests for hearings on disability claims and issue decisions, and provided those attorneys the opportunity for temporary promotions to GS-13 for a period of up to 2 years. The Union requested that the grievants, GS-12 attorneys in the Division of Medicare Part B at OHA Headquarters, be included in the Senior Attorney Program. The Agency denied the Union's request.

      The Union filed a class action grievance alleging that the grievants were excluded from the Senior Attorney Program due to discrimination based on race and handicap. When the grievance was not resolved, it was submitted to arbitration. The parties stipulated the issue as follows:

Was the exclusion of the Medicare Part B attorneys from participating in the [Senior Attorney Program] as GS- 13 Senior Attorneys, a violation of Article 3, Section 2.A and/or Article 26, Section 1 of the National Agreement? If so, what shall the remedy be?

Award at 2. [n1] 

      The Arbitrator examined "external law provisions relating to discrimination and to the court interpretations of the various statutes" to determine if the Agency discriminated against the grievants. Id. at 27. The Arbitrator stated that the test enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) (McDonnell Douglas) is appropriate where there is no direct evidence of discriminatory intent.

      Applying McDonnell Douglas, the Arbitrator found that the Union did not establish a prima facie case. In reaching this conclusion, the Arbitrator determined that because the grievant class consisted "of a variety of individuals most of whom are members of different protected categories, but with no unifying characteristic common to all members[,]" it did not constitute a sufficient class for establishing a prima facie case. [n2]  Award at 35. [ v55 p1161 ]

      The Arbitrator also found that the Agency "clearly establishe[d]" nondiscriminatory reasons for its actions. Id. First, the Arbitrator, relying on Agency testimony, found that Senior Program Attorneys were already authorized by regulation to review disability cases and issue decisions, and that it would have required a regulatory change by the Health Care Financing Administration, a separate agency, to authorize the grievants to issue decisions. Second, noting that the grievants worked in headquarters, not the hearing offices, the Arbitrator also relied on Agency testimony, and found that the Senior Attorney positions were "required at the hearing offices for reasons of operational efficiency." Id. at 33.

      In addition, the Arbitrator found that the Union failed to demonstrate that the grievants would have been selected for Senior Attorney positions under the Senior Attorney program if they had not been members of a protected class.

      The Arbitrator denied the grievance based on his three findings that: (1) the grievants had not established a prima facie case, (2) the Agency's justification for its actions was legitimate and nondiscriminatory, and (3) the Union failed to demonstrate that membership in a protected class affected their selection.

III.     Positions of the Parties

A.     Union

      The Union argues that the Arbitrator made "inaccurate and misleading" factual findings in determining that the Agency had presented legitimate, nondiscriminatory reasons for its actions in failing to include the grievants in the Senior Attorney Program. Exceptions at 6. In particular, the Union asserts that no evidence was presented to confirm the Agency's claim that regulatory changes by the Health Care Financing Administration would be necessary to allow the grievants to perform the work.

      The Union asserts that the award is contrary to law because the Arbitrator improperly found that the Union did not establish a prima facie case. According to the Union, a prima facie case can be established even though the grievant class comprises different races, sexes and disabilities. In the alternative, the Union contends that the Arbitrator should have determined that the seven African American members of the class sufficiently established a prima facie case.

      In addition, the Union contends that the Arbitrator failed to address the grievants' contractual rights. It asserts that the grievants have contractual EEO rights once a prima facie case is established and that, even if the Arbitrator found no discrimination, the agreement provides a separate requirement of fairness and equitable treatment, and the Arbitrator failed to address this issue See supra n.1, Art. 3, Sec. 2.A, Art. 26, Sec. 1.

B.     Agency

      The Agency contends that the Union's exceptions do not establish that the award is contrary to law, rule or regulation. The Agency asserts that the determination of whether a prima facie case was established is inconsequential because the Arbitrator also ruled on the merits of the grievance. In this regard, the Agency asserts that the Arbitrator properly found that the Agency had proffered legitimate, nondiscriminatory reasons for its actions.

IV.     Analysis and Conclusions

A.     The award is not based on nonfacts.

      We construe the Union's argument that the Arbitrator made inaccurate and misleading findings concerning the Agency's reasons for its actions as an allegation that the award is based on nonfacts. To establish that an award is based on a nonfact, the appealing party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). The Authority accords deference to an arbitrator's factual findings because the parties bargained for the facts to be found by an arbitrator chosen by them. See U.S. Department of the Navy, Naval Underseas Warfare Center, Newport, Rhode Island and National Association of Government Employees, Federal Union of Scientists and Engineers, 54 FLRA 1495, 1500 (1998).

      In this case, the Arbitrator found that the Agency decided, for reasons of operational efficiency, that the work at issue would be conducted at the hearing offices, rather than the headquarters office where the grievants worked. The Arbitrator also found that a regulatory change would have been required to assign this work to the grievants. The Union disputes these factual determinations. [n3]  However, the record establishes that these matters were disputed before the Arbitrator. In particu- [ v55 p1162 ] lar, the Arbitrator described the conflicting testimony of the Union and the Agency and credited the Agency's testimony. Award at 33-34. As the Arbitrator's factual findings resolved matters disputed by the parties, we find that the Union provides no basis upon which to find the award deficient as based on nonfacts.

B.     The award is not contrary to law.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by an arbitrator's award and a party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union claims that the award is contrary to Title VII discrimination standards. Accordingly, we review the award and this exception de novo. E.g., U.S. Department of the Treasury, Internal Revenue Service, Brooklyn District, Brooklyn, New York and National Treasury Employees Union, 51 FLRA 1487, 1491 (1996).

      In McDonnell Douglas, the Supreme Court set forth the order of presentation and allocation of burdens in a Title VII case alleging discriminatory treatment. 411 U.S. at 802. First, an employee must establish a prima facie case by showing (1) membership in a protected class (2) qualifications for the position; (3) adverse employment action; and (4) some evidence that would allow the inference of improper motivation. See Barge v. Anheuser Busch, Inc., 87 F.3d 256, 258 (8th Cir. 1996). Once a prima facie case has been established, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. Finally, if the employer articulates a legitimate, nondiscriminatory reason for not selecting the employee, the burden shifts to the employee "to show that [the employer's] stated reason for [the employee's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804.

      The court in St. Mary's Honor Center et. al. v. Hicks, 509 U.S. 502, 509 (1993) clarified that the employer has discharged its burden if it produces evidence that, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action. If this occurs, then the fact finder must "decide the ultimate question: whether . . . [the employer] intentionally discriminated against the [employee]." Id. at 511. In cases where the employer has proffered a legitimate, nondiscriminatory reason for its actions, the issue of whether a prima facie case had been established is immaterial. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983) (Aikens).

      Here, the Arbitrator found both that the Union had not established a prima facie case, and that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Applying Aikens, the Union's exception must be denied unless it establishes that the Arbitrator erred in both findings. If the finding of legitimate, nondiscriminatory reasons is upheld, then the Arbitrator's failure to find a prima facie case, even if erroneous, is not dispositive. See Aikens, 460 U.S. at 715.

      The Union's exception to the Arbitrator's determination that the Agency articulated legitimate, nondiscriminatory reasons for its actions does not challenge the legal standard applied by the Arbitrator. Rather, the Union challenges the Arbitrator's findings, based on Agency testimony, that