32:0330(52)AR - - Library of Congress and AFSCME Local 2910 - - 1988 FLRAdec AR - - v32 p330
[ v32 p330 ]
The decision of the Authority follows:
32 FLRA No. 52
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
LIBRARY OF CONGRESS
AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, LOCAL 2910
Case No. 0-AR-1476
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Marlyn E. Lugar. The Arbitrator determined that the evidence established that the grievant deliberately refused to comply with her supervisor's order to report to work at a particular time for which the grievant was given a 3-day suspension. The Arbitrator, therefore, dismissed the grievant's appeal of the suspension.
The Union filed exceptions 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 did not file an opposition.
We conclude that the Union has not established that the Arbitrator's award is contrary to law or that the Arbitrator improperly failed to consider issues presented by the Union. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The issue before the Arbitrator was whether the Agency had just cause to suspend the grievant for failing to report to work on July 11, 1986, at 8:30 a.m., after having been directed to report at that time by her immediate supervisor.
In July, 1986, the hours of operation in the Agency's Reading Room, which is open to the public, were expanded following an earlier cutback in hours. The grievant, a Union steward, was advised orally and in writing that she was scheduled to report for duty at 8:30 a.m. on July 11. The grievant reported for duty at 9:05 a.m. Thereafter, the Agency proposed to suspend the grievant for 5 days for insubordination. The suspension was later reduced to 3 days.
The Union's position during the arbitration proceeding was that the suspension was in retaliation for the grievant having engaged in protected union activity. More particularly, the Union argued that the grievant was a very active and vocal Union official and was known to management as such. The Union also argued that the grievant specifically questioned the Agency's failure to properly notify employees, under the terms of the parties' collective agreement, of the change in hours of operation which resulted in changes in work schedules, including that of the grievant.
The Arbitrator concluded that the grievant deliberately refused to comply with her supervisor's order to report to work at 8:30 a.m. and that the suspension was based upon that refusal. In reaching this conclusion, the Arbitrator found that "[t]he testimony [at the hearing] as to how active the [grievant] had been as a member of the Union was insufficient to establish a charge of antiunion discrimination with reference to the [grievant's] suspension." Award at 7. The Arbitrator also rejected the Union's contention that the suspension was in reprisal for statements made by the grievant to the effect that the change in work schedules was not binding because of the failure to provide advance notification of the change under the parties' agreement. Award at 11.
The Union contends that the award is deficient for two reasons: (1) the Arbitrator used rules of procedure at the arbitration hearing that are contrary to current law; and (2) the award is contrary to law pertaining to prohibited personnel practice cases under 5 U.S.C. º 2302(b)(9), and is outside the parameters of Federal Personnel Manual (FPM) chapter 752. The Union also asserts that the Arbitrator failed to consider issues presented in the Union's post-hearing brief.
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.
The Union asserts that the Arbitrator used rules of procedure that are contrary to current law. The Union argues that the Arbitrator did not permit the grievant to impeach the testimony of witnesses who, while called as witnesses by the Agency, were considered to be the grievant's witnesses when their testimony during cross-examination was not relevant to their testimony during direct examination. The Union notes that the rule against impeaching one's own witnesses is no longer followed in Federal courts. Instead, Rule 607 of the Federal Rules of Evidence provides for the impeachment of one's own witnesses. Title 28, U.S.C.A. Rule 607 ("The credibility of a witness may be attacked by any party, including the party calling the witness.").
The Union's exception concerns the conduct of the arbitration hearing. An arbitration award is deficient if the excepting party establishes that the arbitrator failed to conduct a fair hearing by refusing to hear pertinent and material evidence. See, 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 401 (1980). Furthermore, in cases involving a question as to the fairness of a hearing, the arbitrator has considerable latitude in the conduct of that hearing. Id. at 404. The fact that the arbitrator has conducted the hearing in a manner that a party finds objectionable does not in and of itself provide a basis for finding an award deficient. See Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, Oklahoma City, Oklahoma, 30 FLRA 20 (1987) and American Federation of Government Employees, Local 2610 and Veterans Administration Medical and Regional Office Center, Togus, Maine, 30 FLRA 1153 (1988).
In this case, the Union has failed to establish that the Arbitrator's ruling concerning the impeachment of witnesses resulted in an unfair hearing. We note especially the Arbitrator's finding that the grievant was not prejudiced because of the application of the rule, see Award at 24, and the absence of any evidence by the Union in its exception to refute the Arbitrator's finding.
The Union also argues that the Arbitrator failed to consider "for cause" regulations contained in FPM chapter 752, subchapter 3-2(a) and applicable case law and also failed to apply case law in prohibited personnel practice cases falling under 5 U.S.C. º 2302(b)(9). We conclude that this exception does not constitute a basis on which to find the award deficient. The FPM regulation cited by the Union is not applicable. Subchapter 3 of chapter 752 concerns "Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay, and Furlough for 30 Days or Less." Here, the grievant's suspension was for less than 14 days. Subchapter 2 of FPM chapter 752 is the appropriate regulation that covers suspensions of 14 days or less.
In any event, the Union is correct in asserting that issuance of a suspension must be for such cause as will promote the efficiency of the service. However, we reject the Union's contention that the Arbitrator failed to consider the issue of cause and applicable case law under both FPM chapter 752 and 5 U.S.C. º 2302(b)(9). The issue before the Arbitrator was whether the Agency had just cause to suspend the grievant for failing to report to work by a certain time as directed by her immediate supervisor. The Arbitrator found that the grievant had in fact refused to comply with the supervisor's order. While the Arbitrator noted that the issue of the suspension being for such cause as will promote the efficiency of the service was not raised at the hearing, the Arbitrator cited to the testimony of management officials concerning the effect of the grievant's tardiness on the Agency's operations. Award at 24. The Arbitrator also discussed some of the case law cited by the Union and its applicability to the facts of this case. While the Arbitrator may not have discussed each of the case citations contained in the Union's brief, the Arbitrator, in our view, gave due consideration to applicable laws and regulations in reaching his findings and conclusions.
Finally, the Union excepts to the Arbitrator's failure to consider various legal issues which were outlined in the Union's post-hearing brief and which, in the Union's view, were included in the issue presented to the Arbitrator. The only specific issue cited by the Union in its exception is whether the grievant's suspension was given in reprisal for having engaged in protected union activity.
The Union has failed to establish that the Arbitrator improperly refused to consider the legal issues raised. First, the particular issue presented to the Arbitrator was agreed to by the parties. Award at 2-3. Second, the Arbitrator did consider whether the suspension was in retaliation for engaging in protected union activity. As previously noted, the Arbitrator found no evidence that the suspension was based on antiunion discrimination or was given in reprisal for statements made by the grievant concerning the application of the collective bargaining agreement to the change in work