32:0121(16)AR - - Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, OK and AFGE, Council of Prison Locals, Local No. 171 - - 1988 FLRAdec AR - - v32 p121



[ v32 p121 ]
32:0121(16)AR
The decision of the Authority follows:


32 FLRA No. 16

UNITED STATES OF AMERICA
BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
EL RENO, OKLAHOMA
Agency

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS
LOCAL NO. 171
Union

Case No. 0-AR-1517

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator W. Edwin Youngblood. Two employees grieved their discipline for inattention to duty following a prisoner escape. The Arbitrator determined that there was insufficient evidence to justify the suspension of one grievant for 3 days and sustained his grievance with backpay. The Arbitrator determined that the second grievant was properly suspended for 7 days for inattention to duty and denied his grievance.

The Union filed exceptions to the denial of the grievance over the 7-day suspension under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition.

We conclude that the Arbitrator's award is not deficient and we deny the exceptions.

II. Background and Arbitrator's Award

The two grievants in this case are correctional officers who were disciplined for inattention to duty following the escape of an inmate. One grievant was suspended for 3 days, the other for 7 days. The matter was submitted to arbitration on the following stipulated issues: (1) were the grievants guilty; and (2) if so, were the suspensions appropriate for this type of offense?

As to the grievant suspended for 3 days, the Arbitrator found that the Agency failed to establish that the grievant violated any rules or that he was inattentive while on duty. The Arbitrator sustained that employee's grievance and awarded him 3 days' backpay.

As to the grievant suspended for 7 days, the Arbitrator found that the Agency established that he was inattentive to duty and that the 7-day suspension was an appropriate penalty. The Arbitrator accepted the Agency's testimony and evidence concerning the grievant's work location and what he should have seen from that location during the escape. That evidence included statements made to a Deputy U.S. Marshal by the inmate who escaped.

The Arbitrator concluded that the Agency had met its burden of proof that the second grievant was inattentive while on duty. The Arbitrator noted that the Agency could have been more thorough in its investigation and that he was "reluctant to give weight to hearsay statements, but they are sufficiently corroborated and consistent with the whole picture." Award at 12. He denied the grievance over the 7-day suspension.

III. Discussion

The Union contends that the part of the award denying the grievance of the employee suspended for 7 days is deficient. The Union asserts that testimony before the Arbitrator established that the area in which the inmate was believed to have escaped was not an area which could be observed from the tower where the grievant was located. The Union also contends that the Arbitrator improperly relied on statements made to the Deputy Marshal by the inmate who made the escape because neither of those persons was available to testify at the arbitration hearing. The Union maintains that consideration of that testimony violated "the Rules and Procedures in Arbitration." Exceptions at 2.

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Specifically, the Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by the Federal courts in private sector labor relations cases. Rather, the Union's contentions constitute nothing more than disagreement with the Arbitrator's findings of fact and with his evaluation of the evidence. See, for example, Metropolitan Correctional Center and American Federation of Government Employees, Local 3652, 31 FLRA 1059 (1988) (contentions that arbitrator did not evaluate evidence properly and that she exceeded her authority when she ruled that the grievant was properly disciplined for inattention to duty provided no basis for finding the award deficient); American Federation of Government Employees, Local 2610 and Veterans Administration M