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42:1109(77)AR - - VA, Waco, Texas and AFGE Local 2571 - - 1991 FLRAdec AR - - v42 p1109

[ v42 p1109 ]
The decision of the Authority follows:

42 FLRA No. 77








LOCAL 2571




October 25, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator A. Dale Allen 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 Rules and Regulations. The Agency filed an opposition to the Union's exception.

The Arbitrator denied a grievance which asserted that the grievant should have been selected for promotion to the position of GS-05 Senior Development Clerk. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The grievant applied for a GS-5 Senior Development Clerk position. When the grievant was not selected for the position, she submitted a written request to the selecting official for the reason she was not selected. The selecting official replied that the most qualified candidate was selected but "he gave no specific reason for [the grievant's] non-selection." Award at 3. Thereafter, the grievant filed a grievance alleging that she was not selected "because of the non-job related factors of age and her attempts to bring problems to the attention of her supervisors." Id. at 4. When the grievance was not resolved, it was submitted to arbitration.

The Arbitrator found that the testimony and documentary evidence presented at the arbitration hearing did not support the grievant's contentions that the Agency improperly failed to select her for the disputed position. The Arbitrator determined that the Agency had articulated "a legitimate, non-discriminatory reason for the nonselection of the Grievant[.]" Id. at 17.

The Arbitrator stated that both the grievant and the selectee were well qualified for the disputed position and the selectee's educational background "ultimately became the 'tie-breaker'[]" between them. Id. at 20. The Arbitrator also stated that "one would nearly have to conclude that [the grievant] was the victim of a 'conspiracy' since several people had a hand in making the promotion decision." Id. at 19. The Arbitrator rejected, in this regard, the grievant's "speculat[ion] that [the selecting official] might have been biased against her because she had filed a prior grievance . . . ." Id. at 21.

In the Arbitrator's view, "[the grievant's] arguments failed to adequately support her allegations." Id. at 18. Accordingly, the Arbitrator denied the grievance.

III. Union's Exception

The Union contends that the award is deficient because "it is not based on the facts in this case." Exception at 1. Specifically, the Union contends that the Arbitrator erred in four "critical factual points[.]" Id. The Union argues that: (1) the Arbitrator's conclusion that the selectee's educational background was the tie-breaker between the selectee and the grievant is not supported by the record; (2) the Arbitrator's finding that it was necessary for the Union to establish a conspiracy between the Agency officials is erroneous; (3) the Arbitrator improperly emphasized the Union's argument regarding bias against the grievant for having filed a grievance; and (4) the Arbitrator did not properly evaluate testimony regarding alleged age discrimination. The Union maintains that "these factual errors led the Arbitrator to rule in favor of VA and against the grievant." Id. at 4.

IV. Agency's Opposition

The Agency contends that the Union's exception should be denied because the Union failed to: (1) cite authority for its arguments; and (2) provide a copy of the award with its exceptions. The Agency also contends that the Union's exception constitutes mere disagreement with the Arbitrator's award and does not demonstrate that the award is deficient.

V. Analysis and Conclusions

We reject the Agency's argument that the exception should be denied on procedural grounds. The Union's exception adequately sets forth the basis on which the award is assertedly deficient, includes a copy of the award, and otherwise complies with the Authority's Rules and Regulations. On the merits, we conclude that the Union has not established that the Arbitrator's award is deficient.

We construe the exception as a contention that the award is based on nonfacts. We will find an award deficient on this ground if it is demonstrated that a central fact underlying an award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA 430, 435 (1991).

The Arbitrator concluded, based on his evaluation of the evidence, that the Union had not demonstrated that the grievant's nonselection was improper, biased, or otherwise flawed. The Union disputes certain arbitral findings but has not established that the findings were central facts underlying the award or were clearly erroneous. Therefore, the Union has not demonstrated that the award is based on nonfacts. Instead, the exception constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony and provides no basis for finding the award deficient. For example, U.S. Department of the Air Force, Air Force Logistics Center, McClellan Air Force Base, Sacramento, California and International Federation of Professional and Technical Engineers, Local 330, 37 FLRA 1071, 1075 (1990).

VI. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)