24:0959(93)AR - HHS, SSA and AFGE Local No. 547 -- 1986 FLRAdec AR
[ v24 p959 ]
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 merits of this dispute before the Authority. See Social Security Administration and American Federation of Government Employees, SSA, Local 1923, AFL-CIO, 7 FLRA 544 (1982). V. DECISION Accordingly, the Union's exceptions are denied. Issued, Washington, D.C. December 31, 1986 /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) The Agency's opposition was untimely and, therefore, will not be considered further herein.