34:0850(141)AR - - AFGE Local 916 and Air Force, Oklahoma City Air Logistics Center, Tinker AFB, OK - - 1990 FLRAdec AR - - v34 p850
[ v34 p850 ]
The decision of the Authority follows:
34 FLRA No. 141
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
February 14, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Francis X. Quinn. The Arbitrator denied the grievance over the suspension of the grievant for falsification of an official Government document.
The American Federation of Government Employees, Local 916 (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 Oklahoma City Air Logistics Center, Tinker Air Force Base (the Agency) did not file an opposition to the exceptions. For the reasons discussed below, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, an employee of the Oklahoma City Air Logistics Center, Tinker Air Force Base, was suspended for 14 days for alleged falsification of an official Government document. The matter arose from a series of events which began on July 9, 1987, when the grievant's car was stopped at Gate 1 on Tinker Air Force Base, and the grievant was asked for his driver's license. The grievant did not have a license, and a computer check with the Oklahoma License Authority revealed that his license had been revoked.
On July 31, 1987, the Agency proposed to suspend the grievant for 5 days for driving on the base without a valid license. On September 23, 1987, during an oral reply to the proposed 5-day suspension, the Agency learned that the grievant had signed a Government document on January 28, 1987, certifying that he possessed a valid state driver's license, although his license had been suspended since 1984. Subsequently, the Agency made a final decision to suspend the grievant for 5 days for driving on the base without a valid license, and the suspension took effect on October 26, 1987.
Based on the information that it received on September 23, 1987, the Agency proposed on November 4, 1987, to suspend the grievant for 14 days for falsifying an official Government document. On December 18, 1987, the grievant received the Agency's final decision upholding the proposed 14-day suspension.
Separate grievances were filed with respect to each suspension and were submitted to different arbitrators. On January 17, 1989, Arbitrator Goodstein ruled in the grievant's behalf in the matter of the 5-day suspension. Arbitrator Goodstein concluded that the grievant was not guilty of driving on the base without a license because the grievant was stopped at Gate 1, which was not Government property, and never actually drove on the base.
On February 10, 1989, Arbitrator Quinn denied the grievance concerning the 14-day suspension. Arbitrator Quinn found that the Agency demonstrated that misconduct had occurred, that discipline would promote the efficiency of the service, and that the level of the penalty imposed by the Agency was appropriate. Arbitrator Quinn ruled that the 14-day suspension was for just cause and was in accordance with the spirit and intent of the parties' agreement, and applicable laws, rules, and regulations.
The Union argued that the 14-day suspension was based on the former 5-day suspension, and should be overturned in light of Arbitrator Goodstein's ruling. Arbitrator Quinn found that the Agency had considered the 14-day suspension to be a first offense and that the level of penalty was not increased by the prior discipline. In denying the grievance, the Arbitrator noted that the falsification charge was proved because the grievant admitted signing the form on January 28, 1987, when he did not possess a valid Oklahoma driver's license.
III. Exceptions to the Arbitrator's Award
The Union raises eight exceptions to Arbitrator Quinn's award.
First, the Union contends that the Arbitrator failed to allow sufficient time for preparation of briefs. Second, the Union asserts that the Arbitrator drew conclusions from opinions rather than fact and failed to consider a U.S. Court of Appeals' ruling concerned with falsification of documents. Third, the Union argues that the Arbitrator failed to consider testimony that the grievant's supervisor had ordered other employees to falsify Air Force forms in the past. Fourth, the Union alleges that the Agency was aware of the alleged falsification in July, 1987, not in September, 1987, and that the Agency committed harmful procedural error by taking action outside of the contractually required 45-day time limit. The Union contends that the Arbitrator exceeded his authority in not considering this issue.
In its fifth exception, the Union asserts that the Arbitrator failed to consider that the testimony of the Agency and evidence presented to the Arbitrator were contradictory. Sixth, the Union argues that the 14-day suspension is not consistent with other penalties for similar offenses. Seventh, the Union argues that facts not in evidence were assumed. Eighth and finally, the Union contends that the Arbitrator failed to consider that the grievant was being retaliated against because of his Union affiliation.
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. The Union has failed to establish that the award is contrary to any law, rule or regulation, or that the award is deficient on any ground similar to those applied by the Federal courts in private sector labor relations cases.
The Union's first exception, relating to the procedural conduct of the arbitration hearing, fails to establish that the award is deficient. Although an arbitration award will be found deficient if it is established that the arbitrator failed to conduct a fair hearing, an arbitrator has considerable latitude in the conduct of a hearing. In Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620, 629-30 (1988), for example, the Authority ruled that the arbitrator's refusal to delay the hearing did not deny the Union a fair hearing. The Authority stated that "[t]he fact that the arbitrator conducted the hearing in a manner which one party finds objectionable does not support a contention that the arbitrator denied the party a fair hearing." Id. The Union has not established that it was denied a fair hearing in this case.
As its fourth exception, the Union contends that the Agency committed harmful procedural error. This argument does not provide a basis for finding the award deficient. In Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 34 FLRA No. 123 (1990) (Griffiss Air Force Base), we reaffirmed that the harmful-error rule of 5 U.S.C. º 7701(c) does not apply to suspensions of 14 days or less. We noted that in resolving a grievance over an action covered by 5 U.S.C. º 4303 or 5 U.S.C. º 7512, an arbitrator must apply the same substantive standards, including the harmful-error rule, as would have been applied if the matter had been appealed to the Merit Systems Protection Board. Griffiss Air Force Base, slip op. at 3. We also noted that the harmful-error rule does not apply to suspensions of 14 days or less which are covered by 5 U.S.C. º 7502. Id. Because this case involves a 14-day suspension, the harmful-error rule does not apply. Consequently, the Union's fourth exception provides no basis for finding the Arbitrator's award deficient.
The Union's second, third, fifth, sixth, seventh, and eighth exceptions constitute nothing more than an attempt to relitigate the merits of the grievance. The Union is merely disagreeing with the Arbitrator's findings of fact, evaluation of the evidence and testimony, and reasoning and conclusions. These exceptions do not provide any basis for finding the award deficient. See, for example, Army Materials and Mechanics Research Center and American Federation of Government Employees, Local 3404, 32 FLRA 1156 (1988) (exceptions which constitute nothing more than an attempt to relitigate the merits of the grievance and disagreement with the arbitrator's findings of fact and evaluation of the evidence and testimony provide no basis for finding an award deficient). See also American Federation of Government Employees, Local 171 and Federal Correctional Institution, El Reno, Oklahoma, 30 FLRA 295 (1987) (exceptions constituting disagreement with an Arbitrator's evaluation of the evidence and testimony, especially the credibility of witnesses and the weight