[ v56 p38 ]
56 FLRA No. 4
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1984
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT MANAGEMENT
COMMAND, BOEING HELICOPTERS
February 18, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Leroy D. Clark 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. [n1]
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement and an Agency regulation by failing to fairly consider five grievants for a promotion to a GS-12 Quality Assurance Specialist (QAS) position. For the reasons set forth below, we deny the exceptions.
II. Background and Arbitrator's Award
The five grievants are employed as QASs and are supervised by the selecting official, an African-American male, whose age is over 40. The grievants applied for a newly created GS-12 QAS position.
The selecting official received a list of 14 candidates that was compiled and certified by the Human Resources Directorate (HRD). He then assembled a panel for the initial screening and developed seven questions for the panel's use. He also asked the panel to provide him with three names from which he would make the final choice. All panel members were over age 40 and only one was an African-American. The panel interviewed the candidates. The selecting official sat through these interviews, but did not pose the seven questions to any candidate. After concluding the interviews, because of the closeness in the qualifications of two candidates, the panelists requested that the selecting official accept four rather than three names, which he did. The four names were submitted to the selecting official in alphabetical order, so that he would have no ranking from the panel. The selecting official chose the selectee, an African-American male, aged 36, for the promotion to the GS-12 QAS position. The selecting official's second choice was one of the grievants.
Subsequently, the grievants filed a grievance alleging that the selecting official denied them fair consideration for promotion to the GS-12 QAS position. The grievants alleged that their nonselection was because of an "improper reliance on personal favoritism, age or race, in breach of the collective bargaining agreement and personnel regulations." Award at 5. The grievants are all Caucasians and over age 40.
The Agency denied the grievance, finding that no prohibited personnel practice or discrimination had occurred. Thereafter, the grievance was submitted to arbitration where the Arbitrator framed the issues as:
Were the grievants refused fair consideration for a promotion to a GS-12 QAS position because of improper reliance [on] personal favoritism, age and race were improperly relied upon in the selection process, in violation of the contract and regulations?
If there was a failure to render fair consideration to the grievants . . . what shall be the appropriate remedy?
Id. at 2. [n2]
Initially, the Arbitrator determined that the grievants made a "prima facie" showing of race discrimination on the facts of this case, where an African-American supervisor made the final choice for a [ v56 p39 ] promotion and the selectee is also African-American. Id. at 18-19. The Arbitrator also found that the grievants made a "prima facie case of age discrimination" because they "were all above their mid-40s" and the successful candidate was age 36. Id. at 17-18. The Arbitrator then shifted the burden to the Agency to provide "evidence designed to counter the inference that the employment decision was based on . . . unlawful reasons[,]" id. at 17, and concluded that the Agency's explanation for its selection of the African-American applicant was reasonable.
In reaching this conclusion, the Arbitrator first found that the selection process up to the point that the four candidates were presented to the selecting official was done by disinterested persons, strictly following a lawful procedure. The Arbitrator found that there were two tiers for screening candidates before the selecting official received the final names. According to the Arbitrator, the selecting official had no control over the first tier process because the initial list of 14 candidates was prepared by a personnel management specialist (personnel specialist) in the HRD. The Arbitrator, noting that the personnel specialist was African-American, stated that the grievants did not allege or produce any evidence showing that this employee included unqualified candidates on the list because they were African-Americans.
The Arbitrator found that the grievants' cross-examination of the personnel specialist only concerned the KSAs of the candidates' applications and her ranking and rating of candidates before the list was submitted to the panel. The Arbitrator determined that in response to the grievants' questions, she explained that in a situation where there were under-represented groups, as in this case, an Agency regulation, DLAR 1404.4, only required the establishment of a list of minimally qualified candidates and did not require a further examination of the KSAs or a ranking of candidates. According to the Arbitrator, the grievants did not cite any part of the contract or regulation to counter the personnel specialist's testimony, which was also supported by provisions in the parties' collective bargaining agreement, including Article 14, section 6(c). Accordingly, the Arbitrator concluded that the Agency proved that the initial list was properly constituted.
The Arbitrator next found that the second tier of the screening process--the interview panel--resulted in the elimination of all the grievants except one. According to the Arbitrator, the grievants did not allege or offer any proof that the panel was "stacked" so as to preclude fair consideration. As to the African-American panelist, the Arbitrator found that the grievants presented no evidence showing that he favored the selectee or that he should not have been a panel member because of his lack of certain work experiences related to the position. The Arbitrator determined that the employee's participation on the panel was consistent with Article 13 of the parties' agreement.
The Arbitrator further found that the evidence established that: (1) the selecting official did not seek to influence the panel's choice; (2) there was no personal favoritism on the panel's part because none of the panel members knew the candidates before the interview; and (3) at least one of the grievants not included in the final four admitted that he may not have interviewed well, and another grievant had a lower performance appraisal than the selectee. The Arbitrator concluded, therefore, that the evidence did not establish that the Agency discriminated against the four grievants whose names were not submitted to the selecting official on the basis of race, age, or personal favoritism.
Concerning the remaining grievant, the Arbitrator further examined the evidence to determine if the Agency had established that the final selection was not affected by considerations of race, age, or personal favoritism. The Arbitrator considered the testimony of the selecting official and found that he chose the selectee because:
of the excellent manner in which [the selectee] acquitted himself in the panel interview and because he believed [the selectee] had the social skills to be a leader of others. He also thought [that the selectee] had the articulateness which would stand him well in the number of meetings that he would have to attend in the new GS-12 position.
Award at 23. The Arbitrator also found that panelists agreed the selectee had interviewed well and that the selecting official had not relied on previous training opportunities in rationalizing his decision to promote the selectee. The Arbitrator determined that the selecting official had considered asking the panel to make the final choice but learned he could not do so because Chapter VI, Section J (2) of DLAR 1404.4 required him to make the selection.
The Arbitrator further found that the grievants produced no evidence showing that the selecting official was motivated by age discrimination other than the fact that the selectee was substantially younger than the grievant whose name was submitted to the selecting official. Referring to the standard applied by the courts for proving disparate treatment based on age, the Arbitrator [ v56 p40 ] determined that there was no evidence showing the selecting official believed the grievant's skills were eroding because of age. Rather, according to the Arbitrator, the evidence showed that the selecting official did not have such a belief, as evidenced by an exceptional performance appraisal the selecting official had recently given to this grievant, and the fact that he was the selecting official's second choice.
The Arbitrator also found that the same evidence discussed above undermined the grievants' claims of personal favoritism and racial discrimination. The Arbitrator rejected the grievants' claim of personal favoritism, finding that the evidence did not establish that the selecting official showed any personal favoritism on the basis of race. Accordingly, the Arbitrator concluded that the grievant whose name was submitted to the selecting official did not sustain his burden of proving that he lost a promotional opportunity because of race, age, or personal favoritism. The Arbitrator denied, therefore, the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is deficient because the evidence shows that the promotion process was not "followed in accordance with DLAR 1404.4 and that age, race, and favoritism were contributing factors in the selection for [the QAS position]." [n3] Exceptions at 1.
The Union asserts that the evidence presented by the grievants "has not been addressed in full[.]" Id. The Union further asserts that the evidence shows that the selectee "lied on his application packet" and that certain statements made by the selecting official demonstrate that the selecting official "was prejudiced before making his final selection" for the promotion. Id, at 2.
B. Agency Opposition
The Agency asserts that the Union offered "no support to show that the Arbitrator denied them an opportunity to present their case." Opposition at 1. The Agency also contends that the Union has provided no evidence showing that any facts relied on by the Arbitrator were clearly erroneous, but for which a different result would have been reached by the Arbitrator.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to an Agency Regulation
We construe the Union's assertion that the evidence shows that the promotion process was not followed in accordance with DLAR 1404.4, as a claim that the award is contrary to an Agency regulation.
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any rule or regulation. For purposes of section 7122(a)(1), the Authority has defined rule or regulation to include both Government-wide and governing agency rules and regulations. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990). In circumstances where a party's exceptions involve an award's consistency with law, rule, or regulation, the Authority must review the questions of law raised by the arbitrator's award and the party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Arbitrator concluded that the evidence established that the Agency did not discriminate against the grievants on the basis of race, age, or personal favoritism in the selection for the QAS position. Although the Union disagrees and argues that the DLAR 1404.4 was not followed, the Union has cited nothing in the regulation or the award demonstrating that the Arbitrator erred in concluding that the Agency did not violate the regulation or discriminate against the grievants in the selection process. On the contrary, the Arbitrator's factual findings show that procedures required by the regulation were followed. In this regard, the Arbitrator found that: (1) a list of candidates were compiled and certified by the HRD; (2) a panel was assembled for the initial screening; (3) the panel interviewed the candidates and forwarded the final names to the selecting official; and (4) the selecting official rather than the panel made the final choice. We defer to the Arbitrator's factual findings. Further, we note that these factual findings have [ v56 p41 ] not been excepted to by the Union. We find, therefore, that the steps the selecting official followed in filling the QAS position are consistent with the procedures set forth in the regulation. See DLAR 1404.4 in the Appendix.
Accordingly, the Union has failed to demonstrate that the award is inconsistent with DLAR 1404.4.
B. The Arbitrator Did Not Fail to Conduct a Fair Hearing
The Union contends that age, race, and favoritism were contributing factors in the selection process in issue and that the Arbitrator failed to address the Union's evidence in full in making his determination, citing six alleged instances where this failure occurred. We construe this contention as a claim that the Arbitrator failed to conduct a fair hearing.
The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to hear or consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceedings as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). Arbitrators have considerable latitude in the conduct of the hearing and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. American Federation of Government Employees, Local 22 and U.S. Department of the Navy, Norfolk Naval Shipyard, 51 FLRA 1496, 1497-98 (1996).
The Union's claim that evidence presented by the grievants was not considered in full must be rejected. The Arbitrator specifically addressed the grievants' claim that the selecting official discriminated against them in the filling of the QAS position on the basis of race, age, and personal favoritism. In particular, the record shows that the facts in the award were "drawn from oral testimony or documentary evidence in accompanying exhibits." Award at 5. The record also shows that the Arbitrator specifically summarized and in some instances quoted the testimony of Union and Agency witnesses in the body of the award, establishing that the evidence presented by the grievants was considered. [n4] See, e.g., Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Council 220, 55 FLRA 498, 502 (1999).
As the Union has not established that the Arbitrator refused to consider pertinent and material evidence or conducted the hearing in a manner that prejudiced the grievants or affected the fairness of the proceedings, we conclude that this exception provides no basis for finding the award deficient.
C. The Award Is Not Based on a Nonfact
The Union's assertion that its evidence was not fully considered by the Arbitrator, and that age, race, and favoritism were contributing factors in the selection process, also may be construed as a claim that the Arbitrator's award is based on various nonfacts.
To establish that an award is based on nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See 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). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact." American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995). Also, an arbitrator is not required to specify or discuss specific items of evidence on which an award is based or which otherwise were considered by the arbitrator. American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 49 FLRA 1508, 1510 (1994). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08 (1996). [ v56 p42 ]
The matter of whether or not the selection process was fair, including the consideration of the candidates' qualifications and the selecting official's action in making the final choice, was disputed by the parties at arbitration. Hence, the Union's exceptions do not provide a basis for finding the award deficient based on a nonfact.
The Union's exceptions are denied.
Article 14 MERIT PROMOTION AND DETAIL
Section 1. Purpose. All personnel actions involving career progression shall be consistent with the spirit and intent of the merit system and the Civil Service Reform Act. (CSRA). The employer and the Union agree that it is the objective of the Merit Staffing Program (MSP) to assure that positions are filled with the best qualified candidates available in order to enhance the mission accomplishment of the Command. The Union recognizes the employer's obligations with regard to Equal Employment Opportunity (EEO) and Affirmative Action and agrees to assist in efforts to eliminate under-representation within all occupations and pay levels.
Section 6 Candidates evaluation
(c) Any of the alternative rating methods found in DLAR 1404.4 may be used to evaluate merit promotion candidates.
Section 7 Use of Panels in the Promotion Process
(b) Panels used to rank candidates for positions should include a subject matter expert.
I. Purpose and Scope
This DLAR establishes the policy and procedures designed to ensure a systematic means of selection for promotion in the competitive service (GS/GM-15 and below). . . .
A. Personnel Actions Covered. The competitive procedures of this DLAR must be applied to the following actions.
. . . .
6. Transfer to a higher graded position (see subparagraph B.11).
B. All selections for competitive position change must be based on job-related criteria.
. . . .
D. Selection actions must be free of discrimination based on race, religion, color, sex, age, national origin, marital status, political affiliation, nondisqualifying physical or mental handicap, or labor organization affiliation or nonaffiliation. [ v56 p43 ]
. . . .
H. Selecting Official. An individual delegated the authority to make the decision regarding the selection for placement into a position.
. . . .
L. Underrepresented Position. A position in an occupation or at a grade level in which the organization under the selecting official has not reached the applicable DLA EEO and/or Affirmative Employment Program goal(s).
. . . .
E. Determining Basic Qualifications
1. Candidate evaluation will be based upon a review of an SF 171, Application for Federal Employment or appropriate locally developed substitute document. Official Personnel Folders may be used only to corroborate information provided by the applicants.
. . . .
F. Evaluation of Candidates
. . . .
2. Candidates will be rated by personnel specialists, by one or more SME(s) approved by the OCP, or by a rating panel.
. . . .
H. Preparing the Promotion Certificate
. . . .
4. Promotion candidates will be referred to the selecting official in alphabetical order so their scores, where used, will not be divulged.
. . . .
J. Candidate Selection
. . . .
2. Panels will not be used to select candidates for promotion except individuals for career intern development programs or when it is impractical to delegate to any one official the authority to select. However, panels may be convened to interview and recommend candidates as long as the selecting supervisor remains responsible for making his/her own selection.
3. Written reasons for selection will be required from selecting officials whenever a position is underrepresented for a particular group, one or more members of that group are referred, and a nonunderrepresented candidate is selected. (See DLAR 1446.1, Equal Employment Opportunity (EEO) Program, and the DLA Affirmative Action Program Plan.)
Footnote # 1 for 56 FLRA No. 4
The exceptions were filed by five grievants. However, the Union authorized one of the grievants to act as the Union's designee in this matter. Accordingly, the exceptions are properly before the Authority. See Authority's Order of July 15, 1999.
Footnote # 2 for 56 FLRA No. 4
Footnote # 3 for 56 FLRA No. 4
Footnote # 4 for 56 FLRA No. 4
For example, the Union's reference to a statement of the selecting official that the grievance in this case was a "strategy" used by the grievants to get promoted is mentioned in the award. Award at 7. Also, grievants' reference to inappropriate conduct on the part of the selecting official with respect to a meeting that an employee attended was also mentioned. Id. at 25.