[ v24 p134 ]
24:0134(18)AR
The decision of the Authority follows:
24 FLRA No. 18
LOCAL 12, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Union
and
U.S. DEPARTMENT OF LABOR
Agency
Case No. 0-AR-1081
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Benjamin B. Lipton filed by the Agency and by the Union under
section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievant was employed by the Agency as a GS-5 library technician
from 1980 until he voluntarily resigned in 1985. In a grievance filed
in January 1984, he contended that he was denied a career ladder
promotion to GS-6 because of sex, race and union activities and that he
was harassed. The grievance was submitted to arbitration. The
Arbitrator found that the allegations of discrimination and harassment
were not supported by the evidence, and ruled that the grievant's level
of performance did not qualify him for a promotion to GS-6. Although
the Arbitrator found that the Agency failed to meet its obligation under
the agreement to provide the grievant with grade-building experience and
developmental opportunity, he also noted that the evidence did not
establish a reasonable probability that the grievant would have been
promoted even if that experience had been provided. As his award the
Arbitrator ordered the Agency to offer the grievant "instatement" in a
GS-5 career ladder position with the potential for promotion to GS-6 at
two six-month intervals during the first year with retroactive pay if
the grievant were promoted. He denied the grievant's request for
attorney fees.
III. AGENCY EXCEPTIONS
A. Contentions
The Agency contends the award conflicts with its right to select
under section 7106(a)(2)(C) of the Statute because it requires the
Agency to offer the grievant the GS-5 position from which he voluntarily
resigned. The Agency also contends that the award is contrary to the
Back Pay Act, 5 U.S.C. Section 5596, because it awards backpay without
the requisite finding that "but for" the Agency's action the grievant
would have been promoted.
B. Analysis and Conclusion
The Authority agrees that the award is deficient on the grounds
stated in Agency's exceptions. It is well established that management's
right to make a selection for an appointment can be abridged only if the
arbitrator finds a direct connection between improper agency action and
the failure of a specific employee to be selected. U.S. Department of
Justice, Bureau of Prisons, Federal Correctional Institution, Lexington,
Kentucky and American Federation of Government Employees, Local 817, 21
FLRA No. 108 (1986). In this case, the Arbitrator did not find that the
Agency's failure to provide the grievant with grade-building experience
directly resulted in the denial of the career ladder promotion. To the
contrary, he ruled that the grievant's performance was such that there
was no reasonable probability of his being promoted even if
grade-building experience had been provided. Further, the Arbitrator
made no finding that the Agency's improper action caused the grievant to
resign from his GS-5 position. Therefore, we conclude that the award
directing "instatement" of the grievant in a GS-5 position is deficient
as contrary to management's right to make selections for appointment
under section 7106(a)(2)(C) of the Statute.
With regard to the Arbitrator's award of retroactive pay, we conclude
that the award is contrary to the Back Pay Act. Backpay can be granted
under that Act only upon finding that (1) an agency personnel action was
unjustified or unwarranted; (2) the personnel action directly resulted
in the withdrawal or reduction of an aggrieved employee's pay,
allowances, or differentials; and (3) but for such action, the grievant
would not have suffered such withdrawal or reduction. U.S. Department
of Commerce, Patent and Trademark Office and the Patent Office
Professional Association, 21 FLRA No. 52 (1986). The Arbitrator made no
finding that an improper action by the Agency directly resulted in the
denial of grievant's promotion or in his resignation from his GS-5
position. Therefore, the requirements of the Back Pay Act have not been
met.
IV. FIRST UNION EXCEPTION
A. Contentions
The Union contends that the Arbitrator's denial of its request for
attorney fees is contrary to law. The Union maintains that it is
entitled to attorney fees because it was the prevailing party in the
arbitration proceeding, and also maintains that the Arbitrator's summary
denial of fees without expressing a basis for his decision was arbitrary
and capricious.
B. Analysis and Conclusion
The Union's first exception is denied. The Authority has
consistently held that an arbitrator is authorized to award attorney
fees under the terms of the Back Pay Act only in conjunction with an
award of backpay on the correction of an unjustified or unwarranted
personnel action. United States Army Aviation Systems Command and
National Federation of Federal Employees, Local 405, 22 FLRA No. 35
(1986). Further, the award of attorney fees must be in accordance with
the standards established under 5 U.S.C. Section 7701(g). Id. In this
case, as noted in connection with the Agency's exceptions, the
Arbitrator's award fails to meet the requirements of the Back Pay Act
and accordingly, there is no basis for an award of backpay or attorney
fees under the Act
V. SECOND UNION EXCEPTION
A. Contentions
In its second exception the Union contends that the award is
deficient because the Arbitrator denied it a fair hearing by improperly
rejecting evidence and by misunderstanding key factual matters.
B. Analysis and Conclusion
The Union's second exception fails to provide a basis for finding the
award deficient and is denied. Although the Authority will find an
arbitration award deficient if it is established that the arbitrator
failed to conduct a fair hearing by refusing to hear pertinent and
material evidence, an arbitrator has considerable latitude in the
conduct of the hearing. U.S. Department of Labor and American
Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA 639,
641 (1983). In this case the Union has failed to establish that it was
denied a fair hearing. We conclude that the Union's second exception
constitutes nothing more than disagreement with the Arbitrator's
reasoning and conclusions and with his evaluation of the evidence and
testimony presented. This disagreement is not a basis for finding an
award deficient. Supervisor of Shipbuilding, Conversion and Repair,
United States Navy and Local R4-2, National Association of Government
Employees (NAGE), 5 FLRA 235 (1981).
VI. DECISION
While the Agency's exceptions provide a basis for finding the award
deficient as contrary to section 7106(a)(2)(C) of the Statute and the
Back Pay Act, we recognize that the Arbitrator made a valid finding that
the Agency violated the agreement when it failed to provide the grievant
with grade-building experience. In Bureau of Prisons, 21 FLRA No. 108,
supra. the Authority held that priority consideration under FPM Chapter
335 is available as a corrective action in a variety of situations in
which employees have been found to be wrongfully denied the
consideration or process to which they are entitled. Therefore, the
Arbitrator's award is set aside and replaced with the following:
Consistent with applicable law, the grievant shall be given
priority consideration for selection to the next available GS-5
library technician position for which he applies.
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY