United States Government Printing Office, Washington, DC (Agency) and International Brotherhood of Electrical Workers, Local 121 (Union)

[ v62 p419 ]

62 FLRA No. 80

UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON, DC
(Agency)

and

INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS
LOCAL 121
(Union)

0-AR-4084

_____

DECISION

May 14, 2008

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an interim award and a final award of Arbitrator Margery F. Gootnick filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      For the following reasons, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      Prior to the grievance at issue in this case, the grievant, a Union steward, applied, but was not selected, for an Electrician Leader position. After his non-selection, the grievant filed a grievance that was resolved by an arbitrator who ordered the Agency to rerun the selection. After the selection was rerun, the grievant again was not selected for the position. Subsequently, the grievant applied for a second Electrician Leader position, and despite being placed on the best qualified list, the grievant was not selected and the position was filled with another candidate, the selectee. The grievant filed another grievance, alleging that his non-selection for the second Electrician Leader position was based on his Union activities and his age. When the grievance was unresolved, it was submitted to arbitration, and the Arbitrator framed the issues as follows:

[ v62 p420 ] Did the Agency violate the collective bargaining agreement or any law, rule, or regulation when it did not select the grievant . . . for the position of Electrician Leader? If so, what is the proper remedy for the violation?

Interim Award at 5.

      Applying the framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Arbitrator found that "the grievant established a prima facie case of discrimination based on his protected union activities in violation of 5 U.S.C. [§] 7116(a)(2) and the parties' agreement." Interim Award at 8. Specifically, the Arbitrator found that the grievant was an active Union steward who had filed "numerous grievances and [Equal Employment Opportunity] EEO complaints for unit employees over the years" and had even "successfully challenged certain actions taken by" the selecting official in this case. Id.

      The Arbitrator noted two incidents in particular in support of her finding that the grievant established a prima facie case. First, she found that, prior to the grievant's non-selection, the grievant had consistently received outstanding performance ratings. However, "around the time of the selection process at issue in this case[,]" the selecting official rated the grievant "fully successful on one critical element" of his performance appraisal. Id. at 10. According to the Arbitrator, this rating was given "unfairly[,] in order to make [the grievant's] candidacy for promotion less viable and to retaliate for his protected challenges to supervisory authority." Id. at 11. Second, the Arbitrator found that, after the selection was announced, the selecting official made a comment in the presence of the Union president, the grievant, and another Agency official, that the Union president was not selected for the position because of the "things he . . . had done" at the Agency. According to the Arbitrator, the other Agency official added that the Union president "should consider what he was doing . . . ." Id. The Arbitrator found that these comments referred to the Union president's union activities and that they were "equally applicable" to the grievant. Id.

      The Arbitrator rejected the Agency's asserted legitimate reasons for not selecting the grievant for the position and found them to be pretext for unlawful discrimination. Specifically, the Arbitrator rejected the selecting official's explanation that he selected the selectee because he possessed qualities such as "good feedback, good production, working well with others, getting things done on time, and giving progress reports on the status of work assignments." Id. at 12-13. According to the Arbitrator, the selecting official conceded that there was no evidence that the grievant lacked any of these same qualities. The Arbitrator also found that the grievant had served as the acting Electrician Leader in the past without incident, as compared to the selectee, who was considered by employees to be "bossy and difficult" whenever he served as the acting Electrician Leader. Id. at 13. The Arbitrator rejected the Agency's claim that it would not have selected the grievant in any event because he had a verbal warning on his record, explaining that the verbal warning was the "least serious" form of discipline that could be imposed and that it was of "temporary duration and minor importance." Id. at 14. Additionally, the Arbitrator found that the selecting official "vastly overstated the importance of the incident that caused him to issue the verbal warning." Id. at 15.

      The Arbitrator also found that the grievant possessed several qualities that made him a better candidate for the position than the selectee. According to the Arbitrator, the selecting official conceded that the Electrician Leader "would be required to perform . . . `troubleshooting' or repair work on the Agency's aging printing equipment . . . ." Id. at 13. The Arbitrator found that the grievant had performed this duty "well ever since he was hired by the Agency in 1983, whereas [the selectee] has had no troubleshooting experience on the Agency's printing equipment since he was hired in 2002." Id. Acknowledging that "there is no selection prerequisite for an Electrician Leader to possess master electrician certificates," the Arbitrator found that it was undisputed that "the experience and demonstrated expertise necessary to obtain and retain such certificates is indicative of the best qualified candidate." Id. The Arbitrator found that the grievant possessed many master electrician certificates and the selectee possessed none.

      The Arbitrator also found that the grievant was not selected for the position because of his age, in violation of the Age Discrimination In Employment Act (ADEA), 29 U.S.C. § 623(a)(1). [n*]  The Arbitrator found that the grievant established a prima facie showing of age discrimination because he was a member of a protected class (over 40 years old), applied and was qualified for a position, was not selected for the position despite his qualifications, and someone outside of the protected class was selected for the position. The Arbitrator rejected the Agency's asserted legitimate reasons for not [ v62 p421 ] selecting the grievant and found them to be pretext for unlawful discrimination. Again, the Arbitrator relied on the grievant's seniority and the fact that the grievant held several master electrician certificates. The Arbitrator also relied on the fact that the grievant had the ability to repair printing equipment, and the selectee did not, explaining that "one of the most critical skills an Electrician Leader . . . should possess is the ability to repair printing equipment . . . ." Id. at 19. The Arbitrator relied on testimony from the Assistant Maintenance Manager at the Washington Post, whom she qualified as an expert witness because he "was well-acquainted with the Agency's printing operations and had over 25 years of experience as a supervisory electrician[.]" Id. The Arbitrator credited the witness' testimony, in which he "unequivocally concluded that [the grievant] was the better qualified" candidate, which the Arbitrator found "reinforce[d her] own independent conclusions." Id. The Arbitrator also rejected the Agency's claims that the selectee "got along better with his co-workers" and that the grievant was not selected because of a verbal warning that was on his record. Id.

      According to the Arbitrator, "other record evidence supports the inference that age played a significant role in the decision to promote the much younger man." Id. at 20. In this regard, the Arbitrator credited testimony that, out of 12 Electrician Leader positions that have been filled at the Agency in the last 25 years, none were filled with a candidate that was older than 50 years of age, "and in the last five years the trend toward selecting younger candidates has accelerated." Id. The Arbitrator also credited testimony that on several occasions, management officials "questioned [the grievant] about his retirement plans and his interest in accepting an Agency `buyout.'" Id. at 20-21.

      Having concluded that the Agency unlawfully discriminated against the grievant, the Arbitrator considered the Union's requested remedy of a retroactive promotion with backpay. In this regard, the Arbitrator noted that there were seven applicants for the position, one being the Union President, who did not file a grievance. The Arbitrator credited the Union President's testimony that he and the grievant were "about equally qualified for the promotion" and that "they both are better qualified than the selectee . . . ." Id. at 22. As such, the Arbitrator was "uncertain whether a retroactive promotion with back pay for the grievant . . . would satisfy the `but for' test embodied in the Back Pay Act." Id. Therefore, the Arbitrator issued an interim award sustaining the grievance and ordering the parties to attempt to resolve the remedial question and the issue of reasonable attorney fees within 30 days from the date of the award. The interim award further provided that if the parties' resolution attempt was unsuccessful, then the parties were ordered to submit briefs to the Arbitrator addressing the Union's requests for a retroactive promotion with back pay and attorney fees.

      The parties did not resolve the dispute, and they submitted briefs to the Arbitrator addressing the issues set forth in the interim award. In her final award, the Arbitrator stated that in her interim award, she "found that [the grievant] would have been selected for the vacant Electrician Leader position but for the Agency's unlawful discrimination based on his protected union activities and age." Final Award at 5. The Arbitrator then compared the grievant's qualifications to another applicant, employee L, whose application packet was submitted in evidence. Crediting the expert witness' testimony that the grievant's qualifications were "way beyond" employee L's qualifications, the Arbitrator concluded that the grievant was more qualified than employee L. Id. at 7.

      According to the Arbitrator, the Union President's "application was not included in the record and therefore no meaningful comparison [could] be made between his qualifications and those of" the grievant. Id. at 8. As such, the expert witness was not asked to review the Union President's qualifications or compare them to those of the grievant's. However, the Union President testified at the hearing as to his qualifications. The Arbitrator found that the Union President had 30 years experience as an electrician, but that he had never served as a supervisor of electricians. The Arbitrator found that the Union President's candidacy "did not preclude [the grievant's] selection in the absence of unlawful discrimination" and that "the Agency should have selected [the grievant] for the Electrician Leader position . . . ." Id. at 9. In so concluding, the Arbitrator found that the circumstances here are similar to those in Soc. Sec. Admin., Woodlawn, Md., 54 FLRA 1570 (1998), where the Authority upheld an award of a retroactive promotion with backpay even though the record did not contain the relative qualifications of other candidates on the best qualified list.

      Based on the foregoing, the Arbitrator awarded the grievant a retroactive promotion with backpay, finding that the grievant was affected by an unjustified, unwarranted personnel action that resulted in a loss of pay.

      Turning to the Union's request for attorney fees, the Arbitrator found that the second and fifth criteria set forth in Allen v. United States Postal Serv., 2 M.S.P.R. 420 (1980) (Allen) were met and that the grievant "unquestionably was the prevailing party[.]" Award [ v62 p422 ] at 12. Specifically, the Arbitrator found that the Agency's action was "clearly without merit or wholly unfounded, and the Agency knew or should have known that it would not prevail on the merits when it took the action." Id. In this regard, the Arbitrator found that the supervisor's decision to not select the grievant was motivated by the grievant's protected activities and age. Therefore, the Arbitrator found that the Union was entitled to reasonable attorney fees. However, because the Agency did not address the issue of attorney fees and expenses, the Arbitrator withheld her decision on the Union's request for "a 30-day period from the date of [the a]ward" to permit the Agency to respond to the Union's request. Id. at 13.

      In sum, the Arbitrator found that: (1) the grievant was unlawfully discriminated against based on his protected union activities and age when he was not selected for the position; (2) but for the unlawful discrimination, the grievant would have been selected for the position; (3) the Agency's action in not selecting the grievant for the position constitutes an unwarranted, unjustified personnel action; (4) the grievant lost pay as a result of the Agency's violation; (5) the Union is entitled to attorney fees; and (6) the amount of attorney fees could not be determined at the time of the award because the Agency had not responded to the Union's request. Based on the foregoing, the Arbitrator awarded the grievant a retroactive promotion with backpay to the position of Electrician Leader effective on the date the selectee was selected.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency makes four contrary to law arguments. First, the Agency asserts that the interim award interferes with its right to make selections under § 7106(a)(2)(C) of the Statute because the Arbitrator improperly made her own determination as to the qualification factors for the position. Specifically, the Agency asserts that the Arbitrator wrongly relied on the grievant's troubleshooting experience and master electrician's license, while ignoring his verbal warning. The Agency cites AFGE, Local 31, 49 FLRA 957, 963 (1994) (AFGE) for support and asserts that the Arbitrator made no finding that the selection factors on which the supervisor relied "were impermissible or prohibited by any law, agency regulation, or the collective bargaining agreement." Exceptions at 13. The Agency also argues that the final award does not satisfy the "but for" test under prong II of the BEP framework because the Arbitrator did not consider the concurring official's "role in the selection." Id. at 31. Acknowledging the Arbitrator's finding that the supervisor was motivated by the grievant's age and union animus, the Agency points out that no such finding was made as to the concurring official. Id. at 32. According to the Agency, the Arbitrator "never attempted to recreate the selection process," and "ignor[ed] most of the other applicants altogether." Id. at 33-34. As such, the Agency argues that the Arbitrator did not find that the grievant would have been selected "out of all seven applicants." Id. at 33.

      Second, the Agency disputes the award's consistency with the Back Pay Act. In this regard, the Agency disputes the Arbitrator's finding that the grievant "should have been promoted" because the Agency claims the expert witness did not testify that the grievant was the best qualified applicant of all seven applicants or that the grievant should have received the position. Id. at 38. According to the Agency, the Arbitrator did not find that the grievant would have been selected out of the seven applicants and admitted that she could not make such a finding based on the record that was before her. As such, the Agency claims that there was no unjustified or unwarranted personnel action warranting backpay or attorney fees. See id. at 37.

      Third, the Agency claims the Arbitrator erred in finding an inference of discrimination based "[i]n large part" on the grievant's qualifications. Id. at 17. In this regard, the Agency claims the Arbitrator was required to find that the grievant was "far superior" than the selectee in order to infer discrimination based on qualifications. Id. (citing Stewart v. Ashcroft, 352 F.3d 422, 429 (D.C. Cir. 2003)).

      Fourth, the Agency disputes the Arbitrator's reliance on the expert witness' testimony, arguing that "the subject matter of his expertise was never specifically identified" and that "expert testimony was not appropriate here." Id. at 22 (citing Rule 702 of the Federal Rules of Evidence).

      The Agency makes six nonfact arguments. First, the Agency disputes the Arbitrator's findings that the supervisor treated the grievant unfairly in order to make his candidacy for promotion less viable and to retaliate against him for his protected union activities. Id. at 19-20. In this regard, the Agency claims that the lowered performance appraisal that the Arbitrator relied on was "post selection" while the performance rating submitted with the grievant's application packet rated him outstanding. Id. Second, the Agency claims that the Arbitrator's finding of discrimination is based on the nonfact that the supervisor unilaterally made the selection, when in fact, the former Chief of the Facilities Division concurred [ v62 p423 ] in the decision. Third, the Agency disputes as a nonfact the Arbitrator's finding that the supervisor made "a `post-selection effort to justify his decision'" by relying on the grievant's verbal warning because the supervisor's reliance on this fact was not "post-selection." Id. at 27. Fourth, the Agency claims the Arbitrator's finding of pretext is based on a nonfact because there is no evidence in record that the supervisor knew or should have known that the selectee's co-workers found him to be bossy and difficult. Id. at 28. Fifth, the Agency claims the remedy award is based on the nonfact that the Arbitrator made a finding in the interim award that the grievant would have been selected, when in fact, she made no such finding. Id. at 39. Sixth, the Agency asserts that the Arbitrator relied on the nonfact that supervisory experience was required for the position when, in her remedy award, she relied on the fact that the grievant had supervisory experience and the Union President did not.

      The Agency also claims that the Arbitrator exceeded her authority by reviewing the grievant's post-selection performance appraisal and verbal warning. Id. at 20-21.

B.      Union's Opposition

      The Union disputes the Agency's contrary to law claims. Specifically, the Union asserts that the Arbitrator did not reject the Agency's determination of the qualifications for the position and, in fact, reviewed the selection criteria used by the selecting official and found that the grievant had the requisite qualifications. In doing so, the Union asserts that the Arbitrator acted properly in considering the grievant's master electrician's licenses and troubleshooting experience. With respect to the Agency's claim that the award fails to reconstruct the selection process, the Union asserts that the Arbitrator need not reconstruct the selection process where, as here, the Arbitrator finds a violation of law as opposed to a contract violation. See Opposition at 13. Nevertheless, the Union asserts that the Arbitrator in fact reconstructed the selection process by finding that the grievant would have been selected absent the unlawful discrimination. See id. at 13-14.

      The Union claims that the award is consistent with the Back Pay Act, as the Arbitrator correctly applied the criteria set forth in Allen when she found that the Union was entitled to attorney fees.

      Further, the Union asserts that there was no requirement for the Arbitrator to state explicitly that the grievant's qualifications were "far superior" than the selectee's, as this fact can be inferred from the awards. Id. at 8. As for the Arbitrator's reliance on expert testimony, the Union asserts that "this matter is solely within the discretion of the Arbitrator . . . ." Id. at 9-10 (citing AFGE, Local 3495, 60 FLRA 509, 512 (2004).

      The Union disputes the Agency's claim that the award is based on nonfacts. Specifically, the Union claims the Arbitrator was not required to address the concurring official's testimony because the witness "could not recall any conversation that he had with [the selecting official] concerning the selection." Id. at 10. Moreover, the Union asserts that the Arbitrator was not required to address the testimony of each witness. Id. at 11 (citing United States Dep't of Veterans Affairs, N.Y. Reg. Office, N.Y., N.Y., 60 FLRA 17 (2004)).

      Finally, the Union also disputes the Agency's claim that the Arbitrator exceeded her authority by resolving issues regarding the grievant's verbal warning and performance appraisal. According to the Union, the Arbitrator did not address these issues on the merits.

IV.      Analysis and Conclusions

A.      The Award Is Not Contrary To Law.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.      The Award Does Not Violate Management's Right to Select Under § 7106(a)(2)(C) of the Statute.

      When an exception alleges that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999) (SBA). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See SBA, 55 FLRA at 184. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of [ v62 p424 ] the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. See id. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id.

      The Authority has held that an award requiring an agency to make a selection for appointment affects management's right to make selections under § 7106(a)(2)(C). See United States Dep't of Labor, Wash., D.C., 59 FLRA 511, 514 (2003) (citing AFGE, Council 220, 54 FLRA 1227, 1235 (1998); United States Dep't of Health and Human Servs., Soc. Sec. Admin., San Francisco Region, 48 FLRA 293, 302 (1993)). As the award requires the Agency to promote the grievant, it affects management's right to make selections.

      The Agency does not expressly challenge the award under prong I of the BEP framework and we, therefore, will not apply prong I. See, e.g., United States Dep't of Def., Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 54 FLRA 487, 491-92 (1998) (addressing only prong II where agency did not dispute prong I). The Agency makes two arguments that the award does not satisfy prong II of the BEP framework. First, the Agency claims that the Arbitrator did not consider the concurring official's role in the selection process. Second, the Agency claims that the Arbitrator did not find that the grievant would have been selected out of all seven applicants for the position.

      The Agency's first argument fails because the Agency does not dispute the Arbitrator's finding that the selecting official was motivated by unlawful discrimination. As such, the selecting official's discriminatory motive is sufficient to warrant a conclusion that the grievant was unlawfully discriminated against, without the concurring official's motive. In this connection, discrimination based on protected activity can be established by showing that the employee's protected conduct was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. Letterkenny, 35 FLRA at 118. In addition, the circumstances here are similar to circumstances arising in the private sector where anti-union animus on behalf of one management official has been imputed to the company, even though the management official who actually took the adverse action did not share that animus. See, e.g., JMC Transp., Inc. v. NLRB, 776 F.2d 612, 619 (6th Cir. 1985) (imputing supervisor's anti-labor motivation to company where officers who actually made the firing decision did not share that animus); see also Boston Mutual Life Ins. Co. v. NLRB, 692 F.2d 169, 171 (1st Cir. 1982) (granting enforcement of the NLRB's order even though the management official who ultimately fired the complainant was unaware of that employee's union activity). Applying the foregoing, the Agency has not demonstrated that the award finding that the Agency unlawfully discriminated against the grievant is deficient, such that an award of a retroactive promotion to the grievant would not be warranted.

      The Agency's second argument -- that the Arbitrator ignored most of the applicants and did not find that the grievant would have been selected out of all seven applicants -- also fails. In this regard, the record contains application packets for only three of the applicants. In addition to considering this evidence, the Arbitrator considered the Union President's testimony about his own qualifications for the position. The Arbitrator could not consider evidence concerning the other applicants, as such evidence was not submitted. Furthermore, consistent with Authority precedent, the fact that not all of the application packets were submitted in evidence does not preclude a finding that the grievant was entitled to the disputed position. In this connection, the Authority has found that an award ordering a retroactive promotion satisfied prong II of the BEP framework where the arbitrator made detailed findings that the grievant was more qualified than the selectee and no evidence was submitted as to the other applicants' qualifications. See Soc. Sec. Admin., Woodlawn, Md., 54 FLRA at 1578. Here, the Arbitrator made detailed findings that the grievant was more qualified than the selectee and concluded, based on the record evidence, that the grievant would have been selected for the position but for the Agency's unlawful discrimination. The Agency has not shown that the Arbitrator erred in these findings.

      The Agency also relies on AFGE, arguing that the award violates its right to make selections because the Arbitrator made her own determination as to the qualifications of the position. However, AFGE is distinguishable from this case. In AFGE, the Authority found that the arbitrator changed the relative weights and values assigned to the agency's four selective factors, which were contained in the record. See AFGE, 49 FLRA at 959. Here, the Agency has not established that the Arbitrator changed any of the Agency's established factors or changed any weights or values to be given to those factors. In this connection, the Agency has not provided the Authority with the four selective factors that it claims were changed. Moreover, there is no indication in the award that the Arbitrator changed any weights or values to be given to the selective factors. [ v62 p425 ] Rather, the Arbitrator found that the Agency did not demonstrate that the grievant lacked any of the qualities that the selecting official claimed he considered in selecting the selectee. See Interim Award at 13.

      Against this backdrop, the Arbitrator assessed whether the grievant's non-selection was based on unlawful discrimination. In this context, she considered direct evidence of discrimination as well as the grievant's superior work experience and qualifications, which included qualities that were not necessarily included in the selective factors, such as the grievant's trouble shooting experience and master electrician licenses. In considering this evidence, the Arbitrator did not change or re-weigh the selective factors. Instead, the Arbitrator considered the record as a whole to determine that the Agency's stated reasons for the selection were, in fact, pretext for unlawful discrimination based on his age in violation of 29 U.S.C. § 623(a)(1). It is well settled that consideration of the record as a whole when assessing discrimination claims is appropriate. See, e.g., NTEU and NTEU, Chapter 48, 54 FLRA 1197, 1206-07 (1998) (holding that "it is the record as a whole . . . that supports an ultimate finding of discrimination"). Moreover, an award finding a direct connection between unlawful discrimination and failure to select an employee for promotion does not impermissibly affect management's right to select employees. See AFGE, 49 FLRA at 964 (citing Fed. Deposit Ins. Corp., Chi. Region, 45 FLRA 437, 443 (1992) (award did not violate management's right to select where arbitrator found direct connection between grievant's failure to be selected for promotion and agency's reprisal against grievant for protected EEO activities)). Unlike the Arbitrator in this case, the arbitrator in AFGE expressly found "no evidence of discrimination[.]" Id. As such, AFGE provides no basis on which to find the award deficient. Based on the foregoing, we deny the Agency's exception.

2.      The Award Does Not Violate The Back Pay Act.

      The Authority has long held that an award of backpay is authorized under the Back Pay Act only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See United States Dep't of Health and Human Servs., 54 FLRA 1210, 1218-19 (1998). The Agency's sole argument that the award of a retroactive promotion and attorney fees violates the Back Pay Act is that the Arbitrator erred in finding that the grievant would have been selected for the position. However, as already explained, the Arbitrator expressly found that the grievant would have been selected for the position but for the Agency's unlawful discrimination, and the Agency has not shown that this conclusion is contrary to law. As such, the Arbitrator properly awarded the grievant a retroactive promotion, which entitles him to backpay if he lost pay as a result of the Agency's unjustified personnel action. See United States Dep't of the Treasury, IRS, Helena Dist., 37 FLRA 1410 (1990) (denying exception to an award of a retroactive promotion with backpay where the arbitrator found that the grievant was affected by an unjustified or unwarranted personnel action and that in the absence of discrimination, the grievant would have been awarded the position). The Agency does not dispute the award of attorney fees on the merits and, thus, provides no basis for the Authority to review the award further in this regard. Consequently, we deny the Agency's exception.

3.      The Award Is Not Contrary To Law Because The Arbitrator Found An Inference Of Discrimination Based On The Grievant's Qualifications.

      The Arbitrator found an inference of age discrimination based, in part, on a comparison of the grievant's and the selectee's qualifications. Relying on Stewart v. Ashcroft, the Agency argues that the Arbitrator erred in drawing an "inference" of unlawful discrimination based "[i]n large part" on the grievant's "superior" qualifications. Exceptions at 17.

      In Stewart v. Ashcroft, the United States Court of Appeals for the D.C. Circuit upheld the District Court's finding that the appellant failed to rebut the agency's legitimate, nondiscriminatory reason for the appellant's non-selection: because the selectee was more qualified than the appellant. As relevant here, the appellant argued that the agency's stated reason for not selecting him was a pretext for unlawful discrimination and attempted to establish this by comparing his qualifications to the selectee's qualifications. However, the court found that the appellant did not establish that he was "discernibly better" qualified than the selectee and established only "fine distinctions" between the employees' qualifications, which was insufficient to warrant an inference of discrimination. Stewart v. Ashcroft, 352 F.3d at 429-30. The court explained that it would not reexamine an agency's promotion decision where the selection was based on "`assessing the significance of small differences in the qualifications' and making `a judgment call[,]'" particularly "when there is no other evidence that [the employee's protected class] played a part in the decision." Id.

      [ v62 p426 ] The case here is distinguishable from the Stewart v. Ashcroft case in two ways. First, the Arbitrator found more than "fine distinctions" in the employees' qualifications. Specifically, the Arbitrator found, consistent with the selecting official's concession, that there was no record that the grievant lacked any of the qualities that the selectee possessed. She also found that the grievant possessed additional relevant qualities that the selectee did not possess. In particular, the Arbitrator noted that the grievant had "significantly more experience as an electrician with the Agency - almost a quarter century - as compared with two [years] for the individual selected." Interim Award at 18. The Arbitrator also found that the grievant had over 20 years of troubleshooting experience, a duty the selecting official admitted would be required in the position, while the selectee had none. Finally, the Arbitrator found that the grievant possessed master electrician certificates, which although not required, indicated his superior qualifications, as compared to the selectee, who had no master electrician certificates.

      Second, unlike Stewart v. Ashcroft, where the court found "no other evidence" that the appellant's protected class "played a part in the decision[,]" the Arbitrator found that "other record evidence supports the inference that age played a significant role in the decision to promote the much younger man." Interim Award at 20. In this regard, the Arbitrator considered evidence that none of the 12 Electrician Leader positions that have been filled in the last 25 years were filled with an individual over 50 years of age, adding that the Agency's trend toward selecting younger candidates has accelerated within the last 5 years. In addition, the Arbitrator found that Agency officials questioned the grievant about his retirement plans and interest in accepting a buyout, which she found was an indication of their desire "in having the retirement-eligible [grievant] just go away." Id. at 21. The Agency does not dispute the Arbitrator's findings in this regard, which support her conclusion of unlawful age discrimination. Consequently, we deny the Agency's exception.

4.      The Award Is Not Contrary To The Federal Rules Of Evidence.

      The Agency claims the award is contrary to Rule 702 of the Federal Rules of Evidence because the Arbitrator improperly certified a certain witness as an expert and relied on his testimony. However, the Authority has long held that the Federal Rules of Evidence are not applicable to arbitration hearings and awards. See United States Dep't of the Navy, Naval Explosive Ordinance Disposal Tech. Div., Indian Head, Md., 56 FLRA 280, 287 (2000). As such, even if the Arbitrator's certification of the witness as an expert and reliance on his testimony violate the Federal Rules of Evidence, that would not render the award deficient. Moreover, under longstanding Authority precedent, "[t]he liberal admission of testimony and evidence by an arbitrator is a permissible practice." See AFGE, Local 3495, 60 FLRA at 512 (citing AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996)). Accordingly, we deny the Agency's exception.

5.      The Arbitrator Did Not Exceed Her Authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). The Agency claims that the Arbitrator exceeded her authority by reviewing the grievant's post-selection performance appraisal and verbal warning. Exceptions at 20-21. However, the Arbitrator did not find that the Agency violated any law, rule, regulation, or contract provision by taking these actions. Rather, the Arbitrator's reference and consideration of these actions was solely to resolve the parties' dispute over whether the Agency discriminated against the grievant when it did not select him for the Electrician Leader position. Consequently, we deny the Agency's exception.

B.      The Award Is Not Based On Nonfacts.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000) (Local 1984). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.

      The Agency makes six nonfact claims. Two of the Agency's claims dispute the Arbitrator's findings that the supervisor treated the grievant unfairly and made a post-selection effort to justify his decision to not select the grievant. However, these findings were made based on record evidence, in connection with the Arbitrator's assessment of whether the Agency's stated reasons for not selecting the grievant were pretexts for unlawful discrimination. See Interim Award at 18-20. As such, the facts were disputed below and cannot be challenged as nonfacts. See Local 1984, 56 FLRA at 41.

      The Agency asserts that the Arbitrator incorrectly found three other nonfacts: namely, that the supervisor [ v62 p427 ] unilaterally made the selection decision; that the supervisor knew or should have known the selectee's coworkers thought he was bossy and difficult; and that the position required supervisory experience. However, contrary to the Agency's claim, the Arbitrator did not expressly make any of these factual findings. As such, these are not central facts underlying the award.

      The Agency's remaining nonfact claim disputes the Arbitrator's remedy award in which the Arbitrator states that, in her interim award, she found that the grievant would have been selected for the position but for the Agency's unlawful discrimination. See Remedy Award at 5. The Agency is correct that the Arbitrator erred, as she expressly found in the Interim Award that she was "uncertain whether a retroactive promotion with back pay for the grievant . . . would satisfy the `but for' test embodied in the Back Pay Act." Interim Award at 22. Nevertheless, despite her error as to her prior finding, the Arbitrator independently evaluated the grievant in comparison to other candidates as part of her Remedy Award and concluded that the grievant would have been selected for the position but for the Agency's unlawful discrimination. See Remedy Award at 9-10. As such, the Agency has not demonstrated that "but for" this factual error, the Arbitrator would have reached a different result. Based on the foregoing, we deny the Agency's nonfact exceptions.

V.     Decision

      The Agency's exceptions are denied.