Discrimination Due to Age, Union Activities

Wednesday, June 11, 2008

The Federal Labor Relations Authority (FLRA) recently upheld an arbitrator's decision which found discrimination due to protected union activities and age in U.S. Government Printing Office (GPO) v. International Brotherhood of Electrical Workers (IBEW), Local 121, 62 FLRA No. 80 (May 14, 2008), and awarded the grievant a retroactive promotion with back pay and attorney fees to the union. The arbitrator noted that the grievant, a union steward, had been denied a promotion for an electrician leader position after having filed numerous grievances and EEO complaints and was given a lower performance rating "to make [the grievant's] candidacy for promotion less viable and to retaliate for his protected challenges to supervisory authority." The arbitrator rejected the agency's asserted reasons for not selecting the grievant and found them to be pretext for unlawful discrimination as he had served as the acting electrician leader in the past without incident.

The arbitrator found that the grievant possessed several qualities that made him a better candidate than the selectee as he had more relevant experience and many master electrician certificates while the selectee possessed none, crediting the testimony of an expert witness from the Washington Post. In finding age discrimination in violation of the Age Discrimination in Employment Act (ADEA), the arbitrator also held that the younger selectee was not as well qualified and noted a pattern of selections of younger employees. The FLRA denied the GPO's exceptions in its decision, determining that the arbitrator's award did not violate management's right to make selections, was not inconsistent with the Back Pay Act, was not contrary to law in finding discrimination based on the grievant's qualifications, was not contrary to the Federal Rules of Evidence, the arbitrator did not exceed her authority, and the award was not based on nonfacts.

The FLRA decision is significant because it upheld a rare finding by an arbitrator of anti-union animus in violation of 5 USC 7116(a)(2). The arbitrator also found there was strong evidence of age discrimination: "record evidence supports the inference that age played a significant role in the decision to promote the much younger man. As Union President ___ testified without much contradiction, of the 12 Electrician Leader positions in the Agency's Electrical Branch that have been filled in the last 25 years, not one has been over 50 years of age, and the trend toward selecting younger candidates had accelerated. ... [Agency officials] questioned grievant over his retirement plans and his interest in accepting an Agency "buyout." I infer from such inquiries during the period that the selection for promotion was pending that [the foreman] was interested in having the retirement-eligible [grievant] just go away."

The union was represented by Edward H. Passman, a founding principal at Passman and Kaplan, P.C.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide.

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