34:0986(160)AR - - Air Force, Air Force Logistics Command, Hill AFB, UT and AFGE Local 1592 - - 1990 FLRAdec AR - - v34 p986



[ v34 p986 ]
34:0986(160)AR
The decision of the Authority follows:


34 FLRA No. 160

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

HILL AIR FORCE BASE, UTAH

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1592

(Union)

0-AR-1721

DECISION

February 26, 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 James A. Evenson. The Arbitrator concluded that a 3-day suspension of the grievant was for just cause. 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 to the exceptions.

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

On September 27, 1988, at approximately 12:30 p.m., the grievant's supervisor observed the grievant, a Sand Blaster, "sitting on the intake duct of the bead blaster reading the newspaper." Award at 9. The grievant's second-level supervisor directed the grievant to "clean the equipment room and to mop the floor of the observation booth" in preparation for a review by higher ranking officials. Id. Instead of performing the cleanup, the grievant spent 1 to 1-1/2 hours unsuccessfully searching for a directive stating that water was not to be used in the two rooms.

The grievant spoke with his second-level supervisor during an afternoon break. During the discussion, the grievant "had an exchange of rather foul, abusive words" with the supervisor. Id. The grievant also challenged the supervisor regarding who had authority to authorize the use of water to mop the "painted area in the equipment room." Id. When the grievant refused to help with the mopping, "the work leader . . . went and got the mop and proceeded to mop the floor of the equipment room." Id. All of the cleaning was completed in time for the review.

On November 9, 1988, the grievant received a notice proposing a 3-day suspension for his "disregard of directives, loafing on duty, and inciting to quarrel." Id. at 10. On December 14, 1988, the Agency decided to suspend the grievant for 3 days. In reaching the decision to suspend the grievant for 3 days, the deciding official stated that he considered the fact that on December 10, 1986, the grievant had received a prior reprimand for disregarding a directive. The grievant filed a grievance contesting the 3-day suspension. The grievance was not resolved and was submitted to arbitration.

The Arbitrator framed the issue as follows: "Was the Grievant suspended for just cause; and what is the appropriate remedy?" Id. at 1. At the hearing, the charge of loafing on duty was dropped.

The Arbitrator determined first that the Agency appropriately considered the prior reprimand. The Arbitrator rejected the Union's argument that the Agency should not have considered the previous reprimand because it was issued more than 2 years before the Agency's decision to suspend. The Arbitrator determined that the contract and Agency regulations "appear to be quite clear that the appropriate date is within 2 years of the notice to suspend (November 9, 1988)." (Emphasis added.) Id. at 10.

The Arbitrator also rejected the Union's argument "that the notice to suspend and decision to suspend referred to the Grievant not mopping the observation booth" instead of the equipment room. Id. at 11. The Arbitrator stated "[t]here is no doubt to the Arbitrator what was meant was to mop the floor of the equipment room, especially since the Grievant watched [the work leader] mop the area." Id. The Arbitrator also stated that "any reasonable person would know management's request was to mop the painted area of the equipment room and not the carpet in the observation room." Id. at 13.

The Arbitrator noted that section 25.11 of the parties' collective bargaining agreement states that "[w]hen an employee, during the course of performance of official duties, believes he or she is exposed to a health or safety hazard which presents an imminent danger . . . said employee shall cease the activity in order to immediately contact the nearest available supervisor." Id. at 3. The Arbitrator found, however, that the grievant did not follow that procedure. Moreover, the Arbitrator found that "the Grievant did not have a reasonable basis for a safety or health concern in his denial or refusal to mop the floor of the equipment room." Id. at 11. The Arbitrator further concluded that management has the "discretion to have employees clean up the work area, especially if an employee is reading the paper and not working." Id. at 13.

The Arbitrator rejected the Union's assertion that the language the grievant used in speaking with his supervisor was "the normal use of this type of language in this type of industrial area." Id. at 11. The Arbitrator found that the swearing was loud, in front of four to five people, and was done in an angry manner. Although the Arbitrator found that the grievant apologized to the supervisor for swearing, the Arbitrator determined that "[t]he act of apologizing for his behavior does not mean the Grievant [was] absolved from discipline due to his actions." Id. at 12.

In conclusion, the Arbitrator found that the 3-day suspension was justified. The Arbitrator noted that each independent offense (using abusive language and disregarding a directive) would justify a 3-day suspension. Accordingly, the Arbitrator denied the grievance.

III. Exceptions

The Union alleges that ex parte communication occurred between the Agency's representative and the Arbitrator prior to the hearing. The Union asserts that in response to a comment made by a Union representative concerning the starting time of the hearing, the Agency's representative stated: "'Oh, [the Arbitrator] knew what time we start, I've had extensive conversations with him!'" Exceptions at 3. The Union asserts that the demeanor of the Arbitrator "demonstrated that he was already familiar with the case in chief, it appeared he already knew the issues to frame the case by." Id.

The Union also argues that "[t]he award violates law, specifically, . . . harmful error[.]" Id. at 2. The Union contends that the notice to suspend the grievant was defective because it stated that the grievant failed to mop the observation room instead of the equipment room. The Union argues that as the notice was defective, "this by itself should warrant reversal of the charges." Id. at 4.

Additionally, the Union asserts that "the most egregious error resulting in harmful procedural error is the issue of the agency considering a reprimand which had expired[.]" Id. The Union maintains that the December 10, 1986, reprimand cannot be used to support subsequent disciplinary action. The Union also contends that the award violates the collective bargaining agreement. The Union asserts that the prior reprimand "expired by contract language . . . 4 days prior to the agency rendering the decision to suspend." Id.

IV. Analysis

Under section 7122(a) of the Statute an award will be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases. For the reasons stated below, we conclude that the Union has failed to establish that the award is deficient on any ground set forth in the Statute.

The Union alleges that ex parte communication occurred between the Agency's representative and the Arbitrator before the hearing. In addition, the Union contends that the Arbitrator's demeanor "demonstrated that he was already familiar with the case in chief[.]" Exceptions at 3. We construe these arguments as constituting a claim that the Arbitrator was biased. See Veterans Administration, Winston-Salem, N.C. and American Federation of Government Employees, Local 2880, 27 FLRA 44 (1987). In order to show that an arbitrator was biased against a party to a proceeding, that party must substantiate that: (1) the arbitrator's award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator was guilty of misconduct by which the rights of a party were prejudiced. Id.

We find that the Union's allegation provides no basis for finding the award deficient. The exception is devoid of substantiation that the Arbitrator's award was procured by improper means; that there was partiality or corruption on the part of the Arbitrator; or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced. See Veterans Administration and American Federation of Government Employees, Local 997, 8 FLRA 238 (1982). We note that although the Union claimed the Arbitrator's demeanor demonstrated that he was familiar with the case, the Union did not specify any particular instance when the Arbitrator's conduct or comments allegedly demonstrated bias. Accordingly, we find that the Union did not establish that the Arbitrator was biased.

Finally, we note the court's decision in Early v. Eastern Transfer, 699 F.2d 552 (1st Cir. 1983) (Early). In Early, the United States Court of Appeals for the First Circuit rejected an allegation of bias which was raised for the first time before the court. The court noted that the allegation of bias could have been, but was not, raised before the joint committee which made a final and binding decision to uphold the grievants' discharges. The court concluded that it would "not entertain a claim of personal bias where it could have been but was not raised at the hearing to which it applies. This is the accepted rule in arbitration cases." Id. at 558 (citations omitted). The court stated further as follows:

While it may be unpleasant to have to choose between possibly alienating a decisionmaker in advance by objecting and waiving the issue of bias, we cannot accept that parties have a right to keep two strings to their bow--to seek victory before the tribunal and then, having lost, seek to overturn it for bias never before claimed.

Id.

The Union does not claim, and the record does not disclose, that the Union raised an allegation of ex parte communication at the arbitration hearing. If the Union had raised the alleged ex parte communication at the hearing, the content of the alleged communication, if any, could have been revealed and questions concerning it could have been resolved.

The Union also asserts that the award is contrary to law because the Arbitrator should have found that the Agency violated 5 U.S.C. § 7701(c)(2)(A) by committing harmful errors. 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. § 7701(c) does not apply to a suspension of 14 days or less. We noted that in resolving a grievance over an action covered by 5 U.S.C. § 4303 or 5 U.S.C. § 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. § 7502. Id. Because this case involves a 3-day suspension, the harmful-error rule does not apply. Consequently, we find that the award is not contrary to 5 U.S.C. § 7701(c)(2)(A).

Finally, we reject the Union's contention that the award is deficient because it violates the collective bargaining agreement. This contention constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement in concluding that the Agency's consideration of the grievant's prior reprimand was proper. Disagreement with an arbitrator's interpretation and application of a