24:0959(93)AR - HHS, SSA and AFGE Local No. 547 -- 1986 FLRAdec AR



[ v24 p959 ]
24:0959(93)AR
The decision of the Authority follows:


 24 FLRA No. 93
 
 U.S. DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL SECURITY 
 ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL No. 547
 Union
 
                                            Case No. 0-AR-1148
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Lawrence Kanzer filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Agency filed an opposition.
 /*/
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the Agency's suspension of the
 grievant, a Claims Representative, for 12 days for his tardiness in
 processing the files of several claimants in dire need of compensation
 for medical care, medicine, housing and food.  When the parties could
 not resolve the dispute as to the appropriateness of this disciplinary
 action, the matter was submitted to arbitration.
 
    The Arbitrator initially examined the duties and the distribution of
 work among the grievant and his fellow Claims Representatives (CRs).
 Thereafter, the Arbitrator compared the CRs' disciplinary records.
 
    First, he found that the most important duty of a CRwas to note that
 a claim had been filed and to secure the basic information, for example
 the claimant's name, required on Form SSA-450-SI (Form 450).  Once this
 was done, the claim could then be processed.  Second, the Arbitrator
 determined that the grievant had not been assigned an inequitable number
 of claims to be processed.  Finally, the Arbitrator after comparing the
 discipline records of two CRs introduced by the grievant, found that
 neither CRhad violated the Form-450 input requirement to the extent that
 the grievant had violated it.
 
    After examining the positions of the parties, the Arbitrator
 specifically determined that the grievant was grossly negligent in
 failing to input various dire need claims into the processing system by
 completing a Form 450.  Since 7 or 8 of the dire need claimants were
 thereby denied timely benefits due to the grievant's omission, the
 Arbitrator found that the discipline imposed was warranted and for just
 cause.  Accordingly, he denied the grievance.
 
                        III.  POSITION OF THE UNION
 
    In its exceptions the Union contends that the Arbitrator's award is
 deficient because (1) he failed to conduct a fair hearing by refusing to
 hear material and relevant evidence which the Union wished to present
 and (2) the award is based on nonfacts.  Regarding the first contention,
 the Union asserts that the Arbitrator terminated the hearing prematurely
 in order to catch a plane.  It claims that the two hours allotted for
 the Union's presentation did not permit it to call all of its witnesses
 and the Arbitrator thereby failed to consider all of the Union's
 relevant and material evidence.  In support of this exception the Union
 cites the Authority's decisions in National Border Patrol Council and
 National Immigration and Naturalization Service Council and U.S.
 Department of Justice, Immigration and Naturalization Service, 3 FLRA
 400 (1980);  Veterans Administration, Regional Office and Service
 Employees International Union, Local 556, AFL-CIO, 5 FLRA 463 (1981);
 San Antonio Air Logistics Center, Kelly Air Force Base, Texas and
 American Federation of Government Employees, AFL-CIO, Local 1617, 6 FLRA
 419 (1981);  U.S. Department of Labor and American Federation of
 Government Employees, Local No. 644, NCFLL, 12 FLRA 639 (1983).
 
    As to the contention that the award is based on a nonfact, the Union
 asserts that the Arbitrator failed to consider documentation offered by
 the Union which challenged the Agency's position that the grievant was
 responsible for tallying and inputting claims.  The Arbitrator, however,
 based his award on the finding that the grievant was responsible for
 tallying or initiating the claims into processing system.  To support
 this exception the Union cites the Authority's decision in Mid-America
 Program Service Center, Social Security Administrtion, Department of
 Health, Education, and Welfare and Local No. 1336, American Federation
 of Government Employees, AFL-CIO, 5 FLRA 264 (1981).
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    Although we will find an arbitration award deficient if it is
 established that the arbitrator failed to conduct a fair hearing by
 refusing to hear pertinent and material evidence, for example, National
 Border Patrol Council and National Immigration and Naturalization
 Service Council and United States Department of Justice, Immigration and
 Naturalization Service, 3 FLRA 400 (1980), the Union does not establish
 that the award is deficient on this basis.  The Authority in cases
 involving a question as to the fairness of a hearing has recognized that
 an arbitrator has considerable latitude in the conduct of the hearing.
 Id. at 404.  The fact that the arbitrator conducted the hearing in a
 manner which one party finds objectionable does not support a contention
 that the arbitrator denied that party a fair hearing.  See American
 Federation of Government Employees, Local 1917, AFL-CIO and U.S.
 Immigration and Naturalization Service, 13 FLRA 68 (1983).  Moreover,
 the cases cited by the Union do not stand for the proposition that a
 mere assertion that an arbitrator excluded testimony or documents
 dictates a finding that an arbitrator failed to conduct a fair hearing
 and that an award is, therefore, deficient.  Rather, as noted by the
 Authority in National Border Patrol Council, also cited by the Union,
 Federal courts find arbitration awards deficient as denying a fair
 hearing primarily when an arbitrator's challenged rulings had precluded
 consideration of all the pertinent and material evidence.  In this case,
 the specific instances cited by the Union where the Arbitrator limited
 the number of witnesses heard or the documentation entered into the
 record reveal nothing more than an attempt by the arbitrator to control
 the conduct of the hearing by insuring that such testimony as was
 offered by witnesses or documentation entered into the record was
 relevant and material to the resolution of the issues before him and not
 unduly repetitive.  The Union has not substantiated in what manner the
 Arbitrator's exclusion of the testimony or documentation it asserts was
 improper demonstrates that the Arbitrator was biased or partial and,
 consequently that he failed to conduct a fair hearing.  Thus, since this
 exception is totally devoid of any substantiation, it provides no basis
 for finding the award deficient.  U.S. Army Corps of Engineers, New
 Orleans District and National Federation of Federal Employees, Local No.
 1124, 13 FLRA 70 (1983).
 
    Regarding the Union's second exception, the Authority will find an
 award deficient when it is demonstrated that the central fact underlying
 the award is concededly erroneous and in effect is a gross mistake of
 fact but for which a different result would have been reached.
 Mid-America Program Service Center, Social Security Administration,
 Department of Health, Education, and Welfare and Local No. 1336,
 American Federation of Government Employees, AFL-CIO, 5 FLRA 264 (1981).
  In this case, however, the Union has failed to demonstrate that the
 award is deficient on this ground.  Thus, the Union has not demonstrated
 that the Arbitrator's tallying and input determinations disputed by the
 Union were the central facts on which the Arbitrator based his award and
 that they were concededly erroneous.  In other words, the Union has not
 shown that the Arbitrator not only erred in his view of the facts but
 that the sole articulated basis for his award was concededly and
 indisputably in error.  Rather, the Union's assertion that the
 Arbitrator erred in various respects constitutes nothing more than
 disagreement with the Arbitrator's reasoning and conclusions and an
 attempt to relitigate the me