[ v18 p374 ]
The decision of the Authority follows:
18 FLRA No. 50 U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA Activity and LOCAL 1858, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. 0-AR-774 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Jack Clarke filed on behalf of the Activity by the Department of the Army (the Agency) under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. According to the Arbitrator, the grievant was demoted from a GS-14 to a GS-13 level position as a result of a reduction-in-force (RIF) in 1976. From that time until the grievance before the Arbitrator in this case was filed in 1982, the grievant unsuccessfully sought repromotion to a number of GS-14 vacancies, including Job No. 2774 in 1978. In the proceeding before the Arbitrator in December 1983, the Union essentially alleged that the Activity harassed the grievant or engaged in a practice of reprisal against him for testifying as a witness in a RIF-related court case in 1975, and that the Activity violated the parties' 1979 collective bargaining agreement by failing to accord him proper consideration for repromotion. The Arbitrator found that the evidence did not support the Union's allegation of harassment and reprisal against the grievant. The Arbitrator further determined, however, that the Activity violated the parties' 1979 agreement when it failed to select the grievant for Job No. 2774 in 1978. More specifically, the Arbitrator found that the selecting official referred only to qualification information on the grievant's Talent Bank Worksheet /1/ in making his decision and did not refer to other pertinent information concerning the grievant's qualifications in his personnel file as required by the parties' agreement. The Arbitrator therefore concluded that the Activity violated the 1979 agreement when it failed to ensure in 1978 that the selecting official consider the qualification information contained in the grievant's personnel file. As his award, the Arbitrator directed the activity to promote the grievant to GS-14 in Job No. 2774 with backpay retroactive from the date the grievance was filed. In its exceptions, the Agency contends, among other things, that the award is based on a nonfact. In support of this exception, the Agency contends that there was no collective bargaining agreement between the parties in effect in 1978, that the decision not to select the grievant for Job No. 2774 in 1978 was based properly on review of information in the Talent Bank, and that the Arbitrator's finding that there was an obligation under the parties' 1979 agreement to also review information in the grievant's official personnel file in that selection action constituted a gross mistake of fact but for which a different result would have been reached. Under section 7122(a)(2) of the Statute, the Authority will find an arbitration award deficient when it is demonstrated that the central fact underlying the award is concededly erroneous and in effect is a gross mistake of fact but for which a different result would have been reached. E.g., Headquarters, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, AFL-CIO, San Antonio, Texas, 6 FLRA 292 (1981). In this case, the Arbitrator determined that a requirement in the parties' 1979 agreement was applicable to a selection action in 1978. Clearly, that is the central finding underlying his conclusion that the Activity violated the agreement in not selecting the grievant for Job No. 2774 and also underlying the remedy in his award. Since the agreement was not in effect at the time of the selection action, the central finding of the Arbitrator is indisputably erroneous. Moreover, since the sole articulated basis for the Arbitrator's award was the putative violation of the 1979 agreement, it is clear that but for the erroneous central finding concerning the applicability of the agreement in 1978, the Arbitrator would have reached a different result in the dispute. For these reasons, the Authority concludes that the central fact underlying the Arbitrator's award in this case is concededly erroneous and in effect is a gross mistake of fact but for which a different result would have been reached and, therefore, that the award is deficient. Accordingly, the Arbitrator's award is set aside in its entirety. /2/ Issued, Washington, D.C., June 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ According to the Arbitrator, the Talent Bank Worksheet is a computerized summary of an employee's work history. An individual's Talent Bank information is limited to summaries of six jobs and each entry is limited to four lines. The Arbitrator noted that testimony evidenced that in considering repromotion eligible employees, selecting officials as a matter of practice referred to the Talent Bank for qualification information and not to the employees' personnel files. /2/ It appears that the Arbitrator awarded attorney fees in this matter. However, in view of the Authority's decision, such award is also deficient and must be set aside. See, e.g., Audie L. Murphy Veterans Administration Hospital, San Antonio, Texas and American Federation of Government Employees, AFL-CIO, Local 3511, 16 FLRA No. 140 (1984). Likewise, in view of this decision, it is not necessary to address the Agency's other exceptions to the Arbitrator's award of retroactive promotion and backpay.