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56 FLRA No. 60
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY MISSILE COMMAND
RESEARCH DEVELOPMENT AND ENGINEERING
CENTER, PROPULSION DIRECTORATE
REDSTONE ARSENAL, ALABAMA
May 23, 2000
Before the Authority: Donald S. Wasserman, Chairman, and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator William S. Hart 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 did not file an opposition to the exceptions.
The Arbitrator denied a grievance asserting that an employee was subjected to intimidation, was not treated fairly and was not promoted despite the fact that he was assigned higher-level duties. For the reasons explained below, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, a GS-12 aerospace engineer, claimed that he was intimidated by the acts and statements of his superiors, was not treated with fairness and dignity, and performed duties previously performed by an employee at the GS-14 level. In addition to the cessation of all "harassment and personal intimidation from management[,]" the grievant requested a promotion to the GS-13 level, retroactive to January 4, 1995. Award at 2. When the grievance was not resolved, it was submitted to arbitration on the following issue:
Did the Agency violate the Grievant's rights under Article 11 and Article 26 of the Contract? If so, what should be the remedy?
The Arbitrator found that the grievant's rights had not been violated. First, the Arbitrator addressed specific examples supporting the grievant's claim of intimidation. The Arbitrator found that the supervisor's comment regarding the grievant's work attire "hardly falls in the category of intimidation." Id. at 6. Similarly, with respect to the supervisor's request that the grievant limit his dealings with an employee whose employment was subsequently terminated, the Arbitrator found that the supervisor "would have been remiss" had he failed to caution the grievant "about such association." Id. at 7. Additionally, the Arbitrator rejected the grievant's claim that the supervisor had "thumped [the grievant] on the chest . . . ." Id. at 1. The Arbitrator indicated that there were no witnesses to the alleged incident and that the supervisor had denied doing so.
The Arbitrator next addressed the grievant's claim that he had performed higher-level duties, previously performed by a GS-14 employee who retired, thereby justifying a retroactive promotion. The Arbitrator found that the grievant's performance of "some of those responsibilities is not the same as being assigned by management to take over the position in question." Id. at 8. Marginal notations on the grievant's evaluation report did not, in the Arbitrator's view, support the Union's position that management had assigned the higher-level duties to the grievant. Instead, the notations indicated dissatisfaction with the grievant's job description and a need to obtain "a set of duties to which [g]rievant could be measured." Id. The Arbitrator found "little here to support the supposition that the supervisor was assigning [g]rievant to a GS-13 level position." Id.
In sum, the Arbitrator concluded that the record did not establish that the grievant had been intimidated, had been treated with a lack of fairness and dignity, or was entitled to a retroactive promotion. Consequently, the Arbitrator denied the grievance. [ v56 p423 ]
III. Union's Exceptions
The Union claims that the Arbitrator "completely misinterpreted AR 690-300, subchapter 335, (Enclosure 2) which states that an employee can be non-competitively promoted to a higher position --if they are performing said duties." Exceptions at 1. The Union states that, under Article 26 of the parties' agreement, job descriptions should reflect the duties an employee is performing. Further, under Article 11, an employee should be detailed temporarily, if performing higher duties, and promoted, "if the duties are prolonged[.]" Id. at 2. The Union argues that the Agency did not dispute the fact that the grievant was performing the duties previously assigned to a GS-14 employee and that witness testimony corroborated this fact. According to the Union, the management witnesses who testified at the arbitration hearing did not have knowledge of the grievant's position or duties and could not address whether the grievant had been treated unfairly. The Union acknowledges that, while the Agency submitted exhibits in support of its position, the Union submitted exhibits that contradicted those of the Agency. According to the Union, the Arbitrator "came up with his own opinion regardless of what the facts and witnesses stated." Id. at 1.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law, Rule or Regulation
The Authority's role in reviewing arbitration awards depends on the nature of the exception raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if an arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. In making that assessment, the Authority defers to an arbitrator's underlying factual findings.
In this case, it is unclear whether the Union's exception is predicated on a claimed violation of an Agency regulation or the Federal Personnel Manual (FPM). As to the former, the Union argues in its exceptions that the award is contrary to AR 690-300, subchapter 335, which the Authority previously has found is an "Army Regulation." See U.S. Department of the Army, Armament Research, Development and Engineering Center, Picatinny, Arsenal, New Jersey and National Federation of Federal Employees, Local 1437, 48 FLRA 873, 874 (1993). As to the latter, the Union attached "Enclosure 2" in making its claim with respect to AR 690-300. However, the enclosure consists of a page from FPM subchapter 335-5, which is now codified in nearly identical language at 5 C.F.R. § 335.103, pertaining to "Promotion and Internal Placement." See National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, 51 FLRA 192, 194 n.2 (1995). Despite this ambiguity, we review the Union's exception de novo because, in either event, the exception raises a claimed inconsistency with law, rule or regulation.
Union Enclosure 2, pertinent portions of which are set forth in the Appendix, permits noncompetitive promotions in various situations. The Union basically argues that the grievant should have been noncompetitively promoted, and is now due a retroactive promotion, because he was assigned additional duties and responsibilities following the retirement of a GS-14 employee. In weighing the evidence presented in this case, the Arbitrator considered the duties performed by both the grievant and the GS-14 employee. The Arbitrator acknowledged that the grievant performed some duties of the higher-level position but found that the grievant did not "take over the position in question." Award at 8. Also, with respect to the marginal notations made on the grievant's evaluation report and the Union's claim that it demonstrated the Agency's assignment of the grievant to the higher-level position, the Arbitrator determined that the Agency's disagreement with the Union "is more persuasive on this point." Id. In summing up his findings, the Arbitrator concluded that "[t]here is little here to support the supposition that the supervisor was assigning [g]rievant to a GS-13 level position." Id. Consistent with the standard set forth above, we defer to the Arbitrator's factual findings. These findings support the conclusion that the grievant is not entitled to a retroactive promotion.
Accordingly, we find that the exception does not provide a basis for finding the award deficient as contrary to law, rule, or regulation and we deny the exception. [ v56 p424 ]
B. The Award Draws Its Essence From the Agreement
For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
The issue before the Arbitrator was whether the grievant's rights under Articles 11 and 26 were violated. The Arbitrator found "little evidence to support a conclusion that any of their provisions were violated by the Agency in its treatment of [g]rievant." Award at 9. The Union has not established that the award is deficient. As we stated in Part A above, the Arbitrator found insufficient evidence that the grievant was performing higher-level duties warranting a retroactive promotion. In view of this finding, there is no basis on which to conclude that the award fails to draw its essence from the agreement. Accordingly, we deny the exception.
C. The Award Is Not Based on a Nonfact
To establish that an award is based on a 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, 593-94 (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). 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 whom they have chosen. 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).
The Union essentially claims that the Arbitrator erred in rejecting uncontradicted testimony that the grievant was performing higher-level duties. The question of whether the grievant was performing higher-level duties was clearly disputed at arbitration and does not provide a basis for finding the award deficient as based on a nonfact. Accordingly, we deny the exception.
The Union's exceptions are denied.
Union Enclosure 2
b. Competitive procedures do not apply to:
(1) A promotion resulting from the upgrading of a position without significant change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error.
. . . .
c. Agencies may at their discretion except other actions from their plans. These include, but are not limited to:
(1) The two types of career promotions:
. . . .
(b) A promotion resulting from an employee's position being classified at a higher grade because of additional duties and responsibilities.
Relevant Portions of the Parties' Collective Bargaining Agreement
Article 11 - PROMOTIONS AND DETAILS
. . . .
Section 5. Details [ v56 p425 ]
a. The Employer agrees that when it becomes necessary to fill a higher level position within the bargaining unit because of the temporary nonavailability of the incumbent, or to fill a management need, and there are no qualified employees available at the same grade, selection for detail or temporary promotion shall be made from the best qualified available employees. When the above situation will occur for 30 calendar days or less, the employee will be detailed to the higher level position. When it is expected that the assignment will be for more than 30 calendar days, the employee will be temporarily promoted to the higher level position. The promotion will become effective not later than the commencement of the first pay period after the 30th day of the detail. The Employer agrees that short details will not be utilized in order to avoid making temporary promotions. Temporary promotions in excess of 120 days will be filled under merit procedures. The Employer shall be responsible for recording details of more than 30 days. Such assignments shall be documented for purposes of inclusion in an employee's Official Personnel Folder.
Article 26 - JOB DESCRIPTIONS
Section 1. General
Job descriptions will be written based on the duties and responsibilities assigned by management. Positions having identical or nearly identical supervisory controls, major duties, working conditions, physical demands, and other job related criteria will be grouped into one job description.
Footnote # 1 for 56 FLRA No. 60