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53:1703(152)AR - - NFFE Local 1437 and Army Research, Development and Engineering Center - - 1998 FLRAdec AR - - v53 p1703

[ v53 p1703 ]
The decision of the Authority follows:

53 FLRA No. 152





LOCAL 1437








March 31, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Lawrence I. Hammer 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 alleging that the Agency had: (1) discriminated against the grievant on the basis of race, in violation of the parties' collective bargaining agreement, when it did not select him for promotion to two separate positions; and (2) committed a prohibited personnel practice, as set forth in 5 U.S.C. § 2302(b)(6), by promoting an employee who did not possess the minimal qualifications for the position.

For the reasons explained below, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for further proceedings consistent with this decision.

II. Background and Arbitrator's Award

The grievant, an African-American, is a GS-12 contract specialist in the Agency's Procurement Directorate who has reached the top of his career ladder. There are no African-Americans above the GS-12 level in the Procurement Directorate and, until 1993, the grievant was the only African-American in the Directorate, regardless of grade.

In 1994, the grievant applied for a contract specialist position that was posted under Vacancy Announcement #21-94. This announcement covered five GS-13 vacancies that were located in the Procurement Directorate. Thereafter, the grievant also applied for a project manager position that was posted under Vacancy Announcement #1-95. This announcement covered only one GS-13 position and was located outside the Directorate.

As concerns the positions encompassed by Vacancy Announcement #21-94, the record shows that the panel responsible for rating and ranking the applicants was comprised of three individuals who worked in the Procurement Directorate with the grievant. After the panel rated and ranked the twenty-two applicants for these positions, its evaluations were sent to the Agency's personnel office. The personnel office then considered "additional data" and established a cut-off for referral to the selecting official. Award at 4. Ultimately, only seven applicants were afforded an opportunity to interview for the five contract specialist positions, and the grievant was not among them.

As concerns Vacancy Announcement #1-95, the record shows that the grievant was one of five applicants for the project manager position and that his application, together with that of four other applicants, was submitted to the selecting official. Nevertheless, the selecting official promoted an employee with whom he had previously worked.

A grievance was filed over the grievant's non-selection for any of the vacancies and, when the grievance was not resolved, it was submitted to arbitration on the following issue:

In the selection for vacancy announcements #21-94 and #1-95, were there violations of Article 25.1 of the Collective Bargaining Agreement (1) and/or USC 2302(b)(6)? (2)

If so, what shall the remedy be?

Award at 2.

Before the Arbitrator the Union asserted, with regard to Vacancy Announcement #21-94, that the panel that was responsible for rating and ranking each of the applicants was comprised of three employees who worked with the grievant in the Procurement Directorate. According to the Union, in the normal course of their work each of these employees was responsible for reviewing certain memoranda that made them "most familiar with who in the Directorate had what assignments." Award at 5. The Union, therefore, argued that the members of the rating and ranking panel "knew precisely which application was that of the [g]rievant and who the other applicants were, th[u]s desanitizing the application process." Id.

Based on the foregoing argument, the Union further maintained that the members of the rating and ranking panel consistently and inexplicably gave the grievant lower scores than the scores that were given to white applicants. In support of this contention, the Union compared the scores the grievant was given for various job responsibilities with the scores given to white applicants. The Union alleged that if the crediting plan had been applied properly to the grievant, his resultant score would have been sufficient to have placed him on the list of seven applicants forwarded to the selecting official. The Union also challenged the qualifications of one of the five selectees on the ground that she did not meet the requirements set forth in the Defense Acquisition Workforce Improvement Act.

As concerns Vacancy Announcement #1-95, the Union alleged, as relevant here, that the successful applicant received an unfair advantage because she was permitted to use two additional pages to describe her qualifications for the position, while the other applicants were only permitted to use the space provided on the official form. The Union also claimed that the selecting official had worked with the successful applicant in the Procurement Directorate and that she had been pre-selected.

The Arbitrator concluded that the Union did not establish that the Agency violated Article 25.1 of the parties' bargaining agreement or 5 U.S.C. § 2302(b)(6) when it did not promote the grievant under either vacancy announcement. In arriving at this result, the Arbitrator first determined that the grievant had established a prima facie case of race discrimination. More specifically, the Arbitrator found that: "(1) [the grievant] was black, and thus belonged to a racial minority, (2) that he appeared to be qualified for the position for which he applied, (3) that in spite of being qualified, he was not given the position, and (4) that the chosen candidates [under Vacancy Announcements #21-94 and #1-95] were not members of a racial minority." Award at 8.

The Arbitrator observed, however, that "[t]here is more . . . in an anti-discrimination allegation than merely establishing a prima facie case." Id. According to the Arbitrator, "the aggrieved must establish by a preponderance of the evidence presented that he was not selected or chosen for the position solely(3) because of his race in violation of Title 7 of the Civil Rights Act." Id. The Arbitrator then asserted, "[t]his the grievant failed to do." Id. In this connection, the Arbitrator found that the evidence failed to establish that any member of the panels that rated and ranked the applicants under Vacancy Announcement #21-94 or #1-95, or either panel as a whole, knew the sex or race of any applicant and, as a result, "acted other than honestly." Id.

The Arbitrator also found the grievant's additional allegation that a "racist situation exists" in the Procurement Directorate because no blacks had been hired over the years to be unsubstantiated. Id. The Arbitrator noted, in this regard, that the grievant specifically acknowledged that there had been a hiring and promotion freeze in effect since 1987 and, therefore, no opportunity to hire anyone, including minorities. However, the Arbitrator found that, in spite of this, four of the twenty employees hired by the Agency in 1993 were black. The Arbitrator also found that the grievant was unable to cite any instance in which a black applicant was rejected for a position in the Procurement Directorate that was thereafter filled by an applicant who was white. Finally, the Arbitrator observed that there were fourteen employees at the GS-12 grade level who had been in grade longer than the grievant, all of whom were white.

As concerns the Agency's failure to select the grievant for the project manager's position, the Arbitrator concluded that the grievant had offered no "concrete" evidence that the successful applicant had been pre-selected under Vacancy Announcement # 1-95. Award at 9.

In view of the foregoing, the Arbitrator denied the grievance stating:

That the Grievant was qualified to fill either of the GS-13 openings involved herein, is without question.

That he was more qualified than were any of the successful Candidates, has not been established, nor has it been established by the evidence submitted, that race discrimination in any way played a part in the Grievant not achieving a GS-13 position.


III. Positions of the Parties

A. Union's Exceptions

In its exceptions, the Union reasserts the three primary arguments it advanced before the Arbitrator. First, the Union maintains that the Arbitrator erred in failing to conclude that the Agency violated the Defense Acquisition Workforce Improvement Act by qualifying and selecting a particular applicant for a position under Vacancy Announcement #21-94. In this connection, the Union explains that the Defense Acquisition Workforce Improvement Act mandates that a successful applicant possess a college degree or have acquired ten years of procurement experience as of October 1, 1991. The Union submits that in spite of this requirement, the application of one of the grievant's colleagues, Ms. Regelski, does not indicate that she met this statutory requirement. The Union contends that as Ms. Regelski was not qualified, her selection for promotion under Vacancy Announcement #21-94 violated § 2302(b)(6). See n.2, infra.

The Union next argues that although the Arbitrator determined that § 2302(b)(6) was not violated, in so doing, the Arbitrator merely made a conclusory assertion without any discussion concerning how the conclusion was reached. The Union maintains that there was ample evidence to establish that the system utilized by the Agency for rating and ranking the applicants resulted in white applicants receiving "undeserved credit" while credit that the grievant "deserved" was denied. Exceptions at 18. The Union alleges, however, that the Arbitrator simply failed to discuss it.

Finally, the Union alleges that the Arbitrator incorrectly concluded that the Agency did not discriminate against the grievant on the basis of race when it failed to promote him to one of the GS-13 positions for which he applied. The Union asserts, in this regard, that it is undisputed that the grievant established a prima facie case of discrimination and that the Agency articulated a non-discriminatory reason for its selection decisions. Nevertheless, the Union claims that the Agency's proffered selection decisions are predicated on pretext.

In support of its position, the Union maintains that although this case "abounds with evidence of racism" in the Procurement Directorate, the Arbitrator chose to either misinterpret or ignore it. Id. at 19. According to the Union, such evidence includes the composition of the Procurement Directorate, in which there are no African-Americans in supervisory or managerial positions; the fact that although the grievant's performance appraisals were consistently exceptional, he only received awards from offices outside the Procurement Directorate; and the fact that the grievant was required to file a grievance in order to have corrected an arithmetical mistake, which lowered his performance evaluation.

The Union submits that it is within the context of the Procurement Directorate's "racist behavior" that the ratings given to the various applicants must be considered. Id. at 21. In the Union's view, as the members of the rating and ranking panels were white and, as Agency managers are white, the ratings given the grievant were not objective. Rather, the Union alleges that they were intended to prevent an African-American from being promoted.

B. Agency's Opposition

The Agency asserts that the Union has failed to demonstrate that the award is deficient on any basis. According to the Agency, the Union simply disagrees with the Arbitrator's evaluation of the evidence and is attempting, through its exceptions, to relitigate the merits of the grievance before the Authority. As such, the Agency submits that the Union's exceptions should be denied.

IV. Analysis and Conclusions

A. Authority's Role in Reviewing an Award De Novo

The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994) (Customs Service). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332, (1995) (NTEU), the Authority stated that if the arbitrator's decision is challenged on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo.(4)

Prior to the Authority's decision in NTEU, an arbitrator was not consistently required to set forth specific findings or to specify and discuss all allegations necessary for the resolution of a grievance. See, e.g., U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 41 FLRA 472, 476 (1991) (arbitrator's failure to specifically address union's argument that suspensions violated 5 U.S.C. § 2302(b)(10) provides no basis for finding award deficient); U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 56, 61 (1991) (arbitrator was not obligated to discuss reasons in support of legal conclusion).

In applying a standard of de novo review, however, it is necessary to assess whether the legal conclusions drawn by the arbitrator are consistent with the applicable standard of law, based upon the underlying factual findings.(5) Subsequent to NTEU, the Authority noted that its ability to review de novo the legal conclusions arrived at in an award is dependent on the sufficiency of the record before it. In the process of engaging in such review, the Authority further developed a specific standard to guide it. In this connection, the Authority has concluded that if an award fails to contain the factual findings necessary to enable it to assess the arbitrator's legal conclusions, and the findings cannot be derived from the record,(6) the award will be set aside and the case will be remanded to the parties for submission to the arbitrator so that the requisite findings can be made. See, e.g., American Federation of Government Employees, Local 1997 and U.S. Department of the Air Force, 934th Air Reserve Base, Minneapolis, Minnesota, 53 FLRA 342, 347-48 (1997) (remanding award to the parties for resubmission to an arbitrator as to whether the grievant accepted placement in a lower grade, non-reserve position); American Federation of Government Employees, Local 940 and U.S. Department of Veterans Affairs, Philadelphia, Pennsylvania, 52 FLRA 1429 (1997) (AFGE Local 940) (remanding award to the parties for resubmission to the arbitrator for a determination as to whether the effect of a new weighting of performance standards on unit employees' conditions of employment was more than de minimis); U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 374 (1996) (remanding portion of award concerning compensatory damages because the arbitrator did not set forth the necessary and specific findings, including identification of objective evidence, to support the award).

Accordingly, pursuant to such cases as AFGE Local 940 and AFGE Local 1997, we specifically affirm our intent, in this and future cases, to remand those portions of an award that are challenged by the exceptions and that fail to contain the factual findings necessary to determine whether the arbitrator's legal conclusions are consistent with the applicable standard of law. This is not to say, however, that arbitrators are required to address every factual contention raised by the parties. Rather, arbitrators are required to address only those contentions that are necessary for the Authority to resolve exceptions challenging the legal sufficiency of the award.

B. The Record is Insufficient for a Determination as to Whether the Award is Deficient Under 5 U.S.C. § 2302(b)(6).

As previously noted, the Union claims that the Arbitrator erred in failing to conclude that the Agency violated the Defense Acquisition Workforce Improvement Act by qualifying and selecting Ms. Patricia Regelski for a contract specialist position under one of the two vacancy announcements relevant to this case. According to the Union, by promoting Ms. Regelski to a position for which she was not even minimally qualified, the Agency committed a prohibited personnel practice as set forth in 5 U.S.C. § 2302(b)(6).

In AFGE Local 940, 52 FLRA 1429, the Authority addressed the standards and burdens of proof that are to be applied by arbitrators in addressing questions of law that could have been adjudicated in other fora. In this connection, the Authority explained that standards and burdens of proof set forth in law, rule, or regulation extend to arbitrations. See id. at 1439. The Authority also stated that treating statutory burdens of proof as substantive requirements that apply to arbitrations is consistent with U.S. Supreme Court precedent. See id. Consequently, an arbitrator's failure to apply the prescribed standard will constitute a basis for finding an award deficient.

Pursuant to AFGE Local 940, the Arbitrator in this case was required to apply the statutory burden of proof applicable to whether the Agency committed a prohibited personnel practice pursuant to 5 U.S.C. § 2302(b)(6). The applicable burden of proof, as established by the Merit Systems Protection Board, has been applied by the Authority in such cases as U.S. Department of the Navy, Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey and National Federation of Federal Employees, Local 1437, 48 FLRA 873, 881 (1993) (AFGE Local 1437). There, the Authority stated that in order to challenge a personnel action as a prohibited personnel practice under section 2302(b), an employee must establish that: (1) the disputed personnel action violated law, rule, or regulation; and (2) the law, rule, or regulation implements or directly concerns merit systems principles.

The award under review is completely devoid of any discussion or analysis of the issue of whether the Agency committed a prohibited personnel practice by promoting Ms. Regelski to a position for which she was alleged to be not even minimally qualified under the Defense Acquisition Workforce Improvement Act. Absent such analysis, we have no basis on which to review the award for legal sufficiency. Accordingly, we remand the case to the parties for submission to the Arbitrator, absent settlement, so that he can make the necessary findings of fact and apply the analytic framework set forth in AFGE Local 1437.

In addition, as the Arbitrator's determination on the issue of Ms. Regelski's qualifications may affect his resolution of the Union's Title VII claim, we also direct that, on remand, absent settlement, the Arbitrator reexamine this issue as well.

V. Decision

The award is remanded to the parties for further action consistent with this decision.

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

1. The text of Article 25.1 is as follows:

Article 25 - Equal Employment Opportunity

Section 25.1

It is the policy and responsibility of the employer to provide equal opportunity in employment or conditions of employment for all persons, and to prohibit discrimination in employment or conditions of employment because of race, color, religion, sex, national origin, age, handicapping condition and/or reprisal; and to provide an effective means for handling complaints of discrimination through counseling, investigation, and corrective action in accordance with federal law and regulations.

Award at 2.

2. 5 U.S.C. § 2302(b)(6) provides:

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority--

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment(including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment[.]

3. Even though the Arbitrator did not analyze the case from a mixed motive standpoint, this possible oversight does not appear to be material to the Union's exceptions.

4. "If, on the other hand, the objection is not one of law, but of contract, the Authority's role is limited to that of 'federal courts in private sector labor-management relations.'" Customs Service, 43 F.3d at 687. We note, in this connection, that questions of contract interpretation are questions solely for the arbitrator because it is the arbitrator's construction of the contract for which the parties have bargained. U.S. Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990). As such, the scope of our review of awards challenged on traditional private sector grounds is extremely narrow. See Legislative History of the Federal Service Labor-Management Relations Statute, H.R. Comm. Print No. 7, 96th Cong., 1st Sess. 821 (1979). See also Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987) (as long as an arbitrator is even arguably construing the collective bargaining agreement, that a court is convinced that the arbitrator committed serious error does not suffice to find the award deficient).

5. According to Black's Law Dictionary, Sixth Edition (1990), de novo means anew; afresh; a second time.

6. We do not intend to become finders of fact. A remand would not be appropriate if a necessary fact were, for example, clearly established by an uncontested document that simply was not mentioned by the arbitrator.