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The decision of the Authority follows:
51 FLRA No. 3
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE TREASURY
OFFICE OF THRIFT SUPERVISION
August 25, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John J. McGovern 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance regarding the Agency's implementation and administration of a new performance planning and appraisal system.
For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Arbitrator's Award
In 1989, Congress abolished the Federal Home Loan Bank Board and created the Office of Thrift Supervision (Agency) in its stead. As a result, the Agency was required to develop a new performance planning and appraisal system (performance appraisal system) to replace the numerous separate public and private sector appraisal systems that had previously existed.
Pursuant to a December 1991 directive, the Agency implemented a new performance-based pay system that rewards employees with salary increases in accordance with their performance. Several months thereafter, the Union initiated a grievance alleging various deficiencies in the system's implementation. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator determined that the grievance presented three principle issues, which he stated as follows:
1. The allegation that there was a pre-set distribution of ratings for employees;
2. The allegation that there was improper pro-rating of merit increases; and
3. The charge of discrimination by [m]anagement based on race adversely affecting minorities.
Award at 34.
The Arbitrator found, based on the evidence presented, that the allegation that the Agency had determined the distribution of employee ratings prior to their preparation, or "pre-set" them, lacked merit. Id. at 34. The Arbitrator characterized as hearsay the testimony of Union witnesses that supervisors had stated that "due to rating inflation," the number of higher ratings that could be given was "limited." Id. The Arbitrator also credited the sworn affidavits of senior Agency officials whom Union witnesses had identified as having made these assertions, and in which Agency officials categorically denied that such representations were made.
In addressing the allegation that the Agency had improperly pro-rated merit increases, the Arbitrator noted that this subject had been discussed by the parties during their negotiations over the new performance appraisal system.(1) The Arbitrator further noted that the issue had ultimately been resolved by the Authority in a negotiability decision.(2) Accordingly, the Arbitrator concluded that this allegation should be dismissed.
Finally, the Arbitrator found, "after careful analysis and consideration" of the evidence presented, that the Union failed to prevail on its allegation that the Agency's implementation and administration of the performance appraisal system discriminated on the basis of race. Id. at 35. The Arbitrator, therefore, denied the grievance.
A. Union's Contentions
The Union argues that the award is deficient on four grounds. First, the Union contends that the Arbitrator exceeded his authority because the conclusions drawn by the Arbitrator fail to comport with the evidence presented.
Second, the Union contends that the Arbitrator based the award on a "series of non-facts." Union's Exceptions at 2. In support of this assertion, the Union cites several areas of the award wherein the Arbitrator's reliance on a nonfact allegedly occurred. The Union contends, in this regard, that in the grievance it alleged a "prescribed" distribution of ratings. Id. However, the Union points out that in the award, the Arbitrator stated that the Union alleged a "preset" distribution of ratings. Id. The Union maintains, without providing any explanation, that the terms preset and prescribed are "significantly distinct." Id. Additionally, the Union disputes the Arbitrator's finding that the evidence it presented regarding the distribution of ratings was hearsay. The Union contends that this finding was erroneous because it submitted documentary evidence to support its allegation. Finally, the Union maintains that instead of addressing its allegation that the Agency violated its regulations when it pro-rated the merit increases of employees who received promotions, the Arbitrator "ruled on a question of negotiability," which was not an issue. Id.
As a third ground, the Union asserts that the Arbitrator "ignored" the fact that the Agency's expert witness was given "critically flawed data" concerning the distribution of the Agency's 1991 employee summary evaluations/ratings. Id. at 3. In support of this assertion, the Union maintains that the Agency provided its expert witness with "non-management data" only. Id. According to the Union, at the hearing, the Agency's expert witness testified that, had he been presented with additional "management data," he would have changed his conclusions. Id.
The Union contends, as a fourth ground, that the award is contrary to law. The Union argues, in this regard, that the Arbitrator failed to acknowledge and apply an Agency past practice, set forth in several Agency directives, concerning the pro-ration of merit increases for employees who were promoted during the 1991 performance appraisal period. The Union also contends that the award is contrary to law because the Arbitrator failed to apply the criteria set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas) in analyzing its claim that the Agency's implementation of the performance appraisal system discriminated on the basis of race. The Union maintains that although it established a prima facie case of discrimination under McDonnell Douglas, the Arbitrator failed to acknowledge it and further failed to determine whether the prima facie case had been successfully rebutted by the Agency. Finally, the Union claims that an Agency directive or regulation concerning 1991 performance appraisals states that, as a general rule, only employees with less than one year of employment would be pro-rated. The Union maintains that the Agency therefore was without authority to pro-rate 1991 merit increases, with the exception of those employees hired during that year.
B. Agency's Opposition
The Agency contends that the Union's exceptions are without merit and, accordingly, should be denied. More specifically, the Agency maintains that the Union's assertions that the Arbitrator's award is based on nonfact constitute mere disagreement with the Arbitrator's statement of the issues and his interpretation and evaluation of the evidence. The Agency additionally asserts that the Union has failed to establish the existence of a past practice with which the pro-ration of merit increases allegedly conflicts. Finally, the Agency maintains that regardless of whether the Union established a prima facie case of discrimination, the Arbitrator clearly considered the evidence presented consistent with such a showing and concluded that the Union failed to sustain its burden of proof.
IV. Analysis and Conclusions
A. Arbitrator's Authority
The Union argues that the Arbitrator exceeded his authority because the conclusions drawn by the Arbitrator fail to comport with the evidence presented. However, arguments concerning an arbitrator's analysis of the evidence do not provide a basis upon which to establish that the arbitrator exceeded his or her authority. E.g., U.S. Department of Agriculture, Food Safety and Inspection Service, Western Region and National Joint Council of Food Inspection Locals, Southwest Council, Local 925, American Federation of Government Employees, 36 FLRA 393, 400 (1990) (an arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration). To the extent that the Union contends that the Arbitrator improperly evaluated the evidence, we will address this contention in section C below.
To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that it is based on a nonfact. See Electronics Corporation v. IUE Local 272, 492 F.2d 1255 (1st Cir. 1974).
The Arbitrator's use of the term "preset" instead of "prescribed," appears to be a matter of semantics and does not constitute a fact that can be challenged as a nonfact. Even assuming that it does, the Union has failed to establish that the Arbitrator's use of the term "preset" is clearly erroneous, but for which he would have reached a different result. Similarly, the Arbitrator's finding that the evidence presented by the Union was "hearsay" is a conclusion of law and does not constitute a fact that can be challenged as a nonfact. Moreover, the Union has not demonstrated that the Arbitrator's finding in this regard is clearly erroneous, or that, even if it is, the Arbitrator would have reached a different result but for this error. E.g., American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 398 (1995).
Finally, the Union's assertion that the Arbitrator erroneously ruled on a question of negotiability is simply a contention and not a fact. The Arbitrator stated, in this regard, that the Agency "was adamant about pro-rating . . . and indeed the subject was settled by the [Authority] in its decision and order on negotiability issues." Award at 34. Although the Union disputes this arbitral finding, the Union has not demonstrated that it was a central fact underlying the award or that it was clearly erroneous.
Based on the foregoing, the Union has not established that award is based on a nonfact.
C. Evaluation of the Evidence
The Union claims that the Arbitrator disregarded testimony that supported its position and drew conclusions that do not comport with the evidence. However, disagreement with an arbitrator's evaluation of the evidence and his determination of the weight to be accorded such evidence provides no basis for finding an award deficient. See, for example, American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 966 (1993). Accordingly, these contentions fail to establish that the award is deficient.
D. Contrary to Law
1. Past Practice
Under section 2429.5 of our Regulations, we will not consider issues that could have been, but were not, presented to the arbitrator. E.g., U.S. Department of the Army, U.S. Army Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland and International Association of Machinists and Aerospace Workers, Local Lodge 2424, 49 FLRA 950, 954 (1994). There is no indication in the record that the Union argued to the Arbitrator, as it has in its exception, that the Agency was required to follow a past practice concerning the pro-ration of merit increases for employees who were promoted during the 1991 rating period. Accordingly, this exception is denied.
2. Race Discrimination
In Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 291 (1990) (Health Care Financing Administration) the Authority addressed a claim that the arbitrator failed to apply the appropriate legal standard in resolving an allegation of age discrimination. In that case, as here, the arbitrator did not recite the applicable legal standard for establishing a prima facie case or for allocating burdens of production. The arbitrator did, however, discuss the evidence upon which he relied in arriving at his findings, and based upon those findings, he concluded that "the evidence as to the allegation of age discrimination was 'insufficient and unconvincing.'" Id. at 292. Upon review, the Authority found that the arbitrator's findings constituted his determination that the Agency did not unlawfully discriminate against the grievant on the basis of age. The Authority stated:
The Union has not demonstrated that this conclusion is inconsistent with law. In particular, the Union has not demonstrated that the Arbitrator failed to apply the appropriate legal standard for deciding the issue. Although the Arbitrator did not discuss whether the grievant had established a prima facie case or any of the other burdens in an age discrimination case, we can find no basis on which to conclude that he was required to do so.
Id. at 293 (citation omitted).
In this case, the Arbitrator examined the evidence presented by the Union, as well as the evidence presented by the Agency to rebut it. The Arbitrator stated that "[t]he Union presented its case together with charts displayed within this record, and [the Agency] presented its evidence denying discrimination in any form throughout the system." Award at 35. The Arbitrator concluded, "after careful analysis and consideration," that the Agency's case was "more persuasive in its evidentiary content and substance." Id. The Union has not demonstrated that in arriving at this conclusion, the Arbitrator failed to apply the appropriate legal standard or that his conclusion was otherwise contrary to law. Accordingly, consistent with Health Care Financing Administration, we conclude that this exception provides no basis for finding the award deficient.
3. Agency Directive/Regulation
Under section 2425.2(d) of our Regulations, an exception must be a self-contained document that includes copies of pertinent documents. The Union claims that the award conflicts with an Agency directive or regulation, without providing or identifying the particular Agency directive or regulation that has allegedly been violated. Consequently, the Union has failed to demonstrate that the award is deficient on this basis. See, for example, International Organization of Masters, Mates and Pilots and Panama Canal Commission, 41 FLRA 465, 468 (1991).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The performance period for 1991 was October 1, 1991 through December 31, 1991 and the rating employees received for this shortened period was the rating for that calendar year. Because some employees had received promotions under their old performance appraisal systems earlier in the year, Agency managers were given the discretion to pro-rate 1991 merit pay increases to preclude an employee from receiving two full salary increases in the same calendar year.
2. In American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 47 FLRA 884 (1993), enforced sub nom. American Federation of Government Employees, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir. 1995) the Authority concluded that under 12 U.S.C. § 1462a(g) the Director of the Office of Thrift Supervision was granted sole and exclusive authority to set pay and benefits for OTS employees. In so doing, the Authority rejected, as nonnegotiable, a union proposal that specifically concerned merit increases and provided that "[t]he amount of a merit increase and/or bonus will not be reduced because of a promotion increase or base rate increase which an employee may receive." AFGE, Local 3295, 47 FLRA at 887.