18:0374(50)AR - Army Missile Command, Redstone Arsenal, AL and Local 1858, AFGE -- 1985 FLRAdec AR

 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.