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57 FLRA No. 88
American Federation of Government Employees Local 704 and U.S. Environmental Protection Agency, Region 5 Chicago, Illinois (Jacobowski, Arbitrator), 0-AR-3342 (Decided September 21, 2001)
The Arbitrator denied a grievance alleging that the grievant's non-selection for promotion to an Environmental Protection Specialist (EPS) position, GS-9, violated the parties' collective bargaining agreement and applicable law, namely, 42 U.S.C. § 2000 (the Civil Rights Act, Title VII) and merit systems principles.
The Authority rejected the allegation that the Arbitrator denied it a fair hearing. The Authority noted that it will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. The Authority further stated that 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. Additionally, disagreements with an arbitrator's findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, will not establish that an award is deficient.
The Authority, however, found that the Union failed to support its allegation and found that this s exception provided no basis for finding the award deficient. The Authority noted that the record showed that the Arbitrator did not ignore or disregarded evidence. The Authority further noted that 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. Also rejected were the allegations that the award was based on a nonfact and that the Arbitrator was biased.
The Union also argued that the award was contrary to Title VII of the Civil Rights Act, 42 U.S.C. Section 2000e-16, because the Agency discriminated against the grievant based on race in making the selection. However, the Authority rejected this allegation. The Authority noted that the Arbitrator found that the Agency established a legitimate, non-discriminatory reason for its action, specifically, that the selectee was the best qualified candidate. The Arbitrator's finding that the promotion was on that basis, and not from any reprisal nor unfair considerations to the grievant, constituted a rejection of the Union's claim that the reason given was a pretext for discrimination. The Authority further noted that the Union failed to establish its claim that various facts underlying these conclusions were based on nonfacts and did not establish any other error in the Arbitrator's conclusion. The Authority also rejected the allegation that the Agency harassed the grievant for filing previous EEO and ULP complaints noting that the Arbitrator concluded that the evidence established that the supervisor did not harass the grievant for filing the prior complaints.
Lastly, the Authority concluded that the award was not contrary to 5 U.S.C. § 2302(b)(4) and (b)(6). The Authority noted that a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(6) requires an intentional or purposeful taking of a personnel action in such a way as to give a preference to a particular individual for the purpose of improving her prospects for employment. The Authority further noted that where an arbitrator finds that there is no evidence indicating that the agency's consideration of an applicant was the result of a personnel action intended to give the applicant a preference, the Authority will hold that the award is not contrary to section 2302(b)(6). Here, the Arbitrator found that the applications were reviewed and the certifications were made by OPM rather than by the Agency; the selectee was properly considered as a candidate of other status and as a reinstatement eligible; and the Agency proved that she was selected because she was the best qualified. Accordingly, the Authority concluded that this exception provided no basis for finding the award deficient.