39:0226(14)AR - - National Gallery of Art and AFGE local 1831 - - 1991 FLRAdec AR - - v39 p226



[ v39 p226 ]
39:0226(14)AR
The decision of the Authority follows:


39 FLRA No. 14

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL GALLERY OF ART

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1831

(Union)

0-AR-1804

DECISION

January 30, 1991

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 Paul N. Pfeiffer. This dispute involves charges of absence without leave (AWOL) and the suspension for 5 days of the local Union president. The Arbitrator sustained the grievance and directed the Agency to cancel the 8 hours of AWOL and the 5-day suspension, and to restore to the grievant his lost pay. Because the Arbitrator found that the grievant was minimally disrespectful and insubordinate, the Arbitrator ordered a written reprimand placed in the grievant's files. The Arbitrator determined that the Union's request that it be reimbursed $650 charged as a fee by a representative of Labor Information Services Inc. for appearing on behalf of the Union at the arbitration hearing was warranted and awarded the Union reimbursement of the fee.

The Agency 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 Union filed an opposition to the exceptions. For the following reasons, we will modify the Arbitrator's award by striking the award to the Union of reimbursement of the $650 fee. Otherwise, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is employed by the Agency as a guard. He is also the local Union president. The grievant was suspended for 5 days for insubordination, insolence, failure to carry out specific verbal orders, and absence without leave. The suspension resulted from alleged misconduct on 3 days: November 30, December 3, and December 7, 1988.

On November 30, after dealing with some matters on official time, the grievant had called the Captain and had requested additional official time to complete the matters. The Captain denied the request and ordered the grievant to report immediately for duty. The grievant told the Captain to "drop dead" and hung up the phone. Arbitrator's Award at 3. The grievant, who suffered from hypertension, felt his blood pressure rising and reported directly to the nurse's office instead of to the Captain. The nurse advised the grievant to see his physician. As a result, the grievant reported to the guard office, left a sick leave request with the officer of the guard, and departed without reporting to the Captain. The Captain denied the sick leave request and charged the grievant with 6 hours of AWOL. The grievant was charged with refusing an order by the Captain of the Guard to report for duty and with being insolent by telling the Captain to "drop dead."

The grievant was charged with additional insolence when, on December 3, he stated to the Captain: "You ain't dropped dead yet?" Id. at 5. The grievant was charged with failing to carry out specific orders when, on December 7, he did not report to the Captain as instructed after a meeting for which the grievant had received official time. After the meeting, the grievant had reported to the Captain's office, but his door was closed. When the grievant reported again, the Captain was out of his office. The grievant told a guard clerk to tell the Captain that he had reported and that the Captain should call him. Subsequently, the grievant was granted official time for the remainder of the day, but was charged with 2 hours of AWOL for the period in which he had failed to report personally to the Captain.

A grievance was filed contesting the suspension and the AWOL charges. The grievance was not resolved and was submitted to arbitration.

The Arbitrator conducted the hearing on July 18, 19, 31 and August 1, 1989. On July 24, 1989, after all the Agency's witnesses and the Union's first two witnesses had been examined and cross-examined and both sides had submitted documentary evidence, the Agency's personnel officer filed a letter with the Arbitrator requesting that he withdraw or resign from the matter because of the Agency's belief that he had a bias against females. The Agency claimed that, on both July 18 and 19, the Arbitrator made remarks concerning differences between males and females.(*) The Agency also claimed that the Arbitrator occupied himself with reading material or turned his back on the Agency representative when she examined witnesses, but that when the Union representative, a male, cross-examined witnesses, the Arbitrator paid strict attention to him. Because both of the Agency representatives and one of its key witnesses are females, the Agency maintained that the Arbitrator could not provide a fair hearing.

On July 28, the Arbitrator denied the request. Although the Arbitrator restated his view that there are some differences in the manner in which males address each other, he maintained that the gender of the Agency's representatives and witnesses was totally irrelevant and that he had no bias whatsoever against females. He also denied that he was reading exhibits with his back turned to the Agency representative when she was examining witnesses. Thereafter, the Agency's representatives failed to appear at the hearings on July 31 and August 1. During these sessions, four additional Union witnesses, including the grievant, testified and the Union submitted its closing argument. No closing argument was submitted by the Agency.

The Arbitrator sustained the grievance. He found a pattern of mutual disrespect between the Captain, as commanding officer of the guard, and the grievant in his capacity as both a guard and Union president. The Arbitrator also found a pattern of management pressure on Union representatives amounting to attempted interference with and restraint on their legitimate performance of Union business in violation of the parties' collective bargaining agreement. In this context, the Arbitrator viewed the charges against the grievant to be trivial.

With respect to the events of November 30, the Arbitrator found that the grievant was under stress due to his failure to take his hypertension medication and the Captain's refusal to grant him additional official time. The Arbitrator faulted the grievant for the language he used, for hanging up the telephone abruptly, and for going immediately to the nurse's office for treatment of his hypertension instead of first reporting to the Captain as ordered. The Arbitrator noted, however, that in denying this aspect of the grievance, management failed to consider the grievant's right to a reasonable amount of official time to conduct Union business. Because the Captain testified that if he had known that the grievant had reported to the nurse's office and had been directed to see his physician, he would not have charged the grievant with AWOL, the Arbitrator concluded that, on balance, the incident warranted at most a reprimand rather than a charge of AWOL and a suspension.

The Arbitrator concluded that the alleged insolent remarks on November 30 and December 3 could not be viewed as a serious violation of decorum between a Union president and his superior. He found that the words could not be taken seriously and were, apparently, part of the grievant's wise-cracking nature. The Arbitrator further concluded that the events of December 7 did not constitute substantial, intentional insubordination and deliberate refusal to obey orders. He found that the circumstances were clearly mitigating. Although the Arbitrator faulted the grievant for leaving a message to have the Captain call him, the Arbitrator determined that this incident did not warrant a charge of AWOL or a suspension.

The Arbitrator also observed that the evidence indicated that there was more than a mere clash of personalities involved in this case. He noted that there was a general dissatisfaction with the Captain by unit employees. The Arbitrator further noted that the Agency's personnel management specialist had failed to respond forthrightly to the grievant's request for information on the denial of his request for sick leave for November 30 and had suggested that the grievant step down as president of the Union.

In summary, the Arbitrator found that the grievant was "minimally disrespectful and insubordinate." Id. at 12. However, the Arbitrator faulted the Captain for failing to grant the grievant reasonable amounts of official time as required by the collective bargaining agreement and for failing to resolve this matter short of arbitration. The Arbitrator ordered a written reprimand placed in the grievant's personnel files. He further ordered the cancellation of the suspension and the 8 hours of AWOL and the restoration of the grievant's lost pay.

The Union also sought from the Arbitrator an award of $650 in "legal fees." Arbitrator's Award at 2. The Union requested that it be reimbursed $650 charged as a fee by Mr. Michael Doring of Labor Information Services, Inc. for appearing on behalf of the Union at the arbitration hearing in relation to the Agency's recusal request. The Arbitrator determined that the request was warranted and awarded the Union reimbursement of the $650 fee.

III. First Exception

A. Positions of the Parties

The Agency contends that the award is contrary to the Statute, Government-wide regulations, and the parties' collective bargaining agreement.

The Agency argues that the Arbitrator's finding that the evidence established a pattern of management pressure on Union representatives amounting to attempted interference and restraint on their legitimate performance of Union business is inconsistent with the Statute. The Agency claims that the Arbitrator does not understand that the Union is attempting to interfere with management's right to assign work and to determine its internal security practices for the protection of the Agency's art treasures.

The Agency also argues that it is clear that the Arbitrator does not have an understanding of the procedures for taking a disciplinary action under 5 C.F.R. chapter 752. The Agency claims that if the Arbitrator had understood these procedures, he would not have identified the decision of the deciding official on the proposed suspension as a decision on the grievance.

The Agency further argues that the Arbitrator ignored pertinent provisions of the parties' collective bargaining agreement. The Agency asserts that the Arbitrator ignored the agreement provision providing that disciplinary actions will be taken only for just cause and that the Arbitrator ignored other pertinent provisions of the agreement when he set forth his list of pertinent provisions. The Agency also argues that the Arbitrator cited an inapplicable provision of the agreement in faulting the Captain for failing to resolve this matter short of arbitration.

The Union contends that the Agency has failed to establish that the award is deficient and is merely attempting to relitigate the entire case.

B. Analysis and Conclusions

We conclude that the Agency's exception provides no basis for finding the award deficient.

The Agency fails to establish that the Arbitrator's finding of a pattern of management pressure on Union representatives conflicts with any management right. The award was solely concerned with and limited to deciding whether the suspension of the grievant and charging him with AWOL was warranted. The Agency fails to demonstrate that the Arbitrator's determination that the grievant was only minimally disrespectful and insubordinate affects any internal security practice or requires the Agency to take or refrain from taking any action pursuant to its right to assign work. See Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 338-39 (1990) (award did not conflict with management's right to determine internal security practices or assign work). In our view, the Agency's contention constitutes nothing more than disagreement with the Arbitrator's findings of fact and his evaluation of the evidence and testimony and an attempt to relitigate the merits of the case before the Authority. As such, the contention provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 38 FLRA 337 (1990) (Hill Air Force Base); U.S. Department of the Treasury, Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176 (1990) (Brookhaven Service Center). Furthermore, the disputed finding of the Arbitrator was only one factor relied on by the Arbitrator in arriving at his award, which determined that the grievant should not have been suspended or charged with AWOL, but should only be reprimanded. Therefore, the Agency's contention additionally constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusions in arriving at his award and provides no basis for finding the award deficient. See, for example, Brookhaven Service Center, 37 FLRA at 1187-88.

We conclude that the Agency fails to establish that the Arbitrator's award, which mitigated the grievant's 5-day suspension to a reprimand, is contrary to 5 C.F.R. chapter 752. The fact that, in the course of discussing the case, the Arbitrator identified the decision of the deciding official on the suspension as a decision on the grievance provides no basis for finding the award deficient.

We view the Agency's contention that the award is contrary to the parties' collective bargaining agreement to be a contention that the award fails to draw its essence from that agreement. In order to show that the award fails to draw its essence from the agreement, the Agency must establish that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator;" (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, Hill Air Force Base, 38 FLRA at 339. The Agency's contentions that the Arbitrator ignored provisions of the collective bargaining agreement and cited an inapplicable provision of the agreement in faulting the Captain for failing to resolve this matter short of arbitration fail to establish that the award is deficient under any of these tests. The Arbitrator's listing of the pertinent provisions of the agreement and his faulting of the Captain for failing to make every effort to promptly resolve disputes under Article XX, Section 3 of the agreement is not so irrational, unfounded, or implausible so as to fail to draw their essence from the agreement. In our view, the Agency's contentions constitute nothing more than disagreement with the Arbitrator's interpretation and application of the agreement and an attempt to relitigate this matter. As such, they provide no basis for finding the award deficient. See id. at 340.

Accordingly, we deny this exception.

IV. Second Exception

A. Positions of the Parties

The Agency contends that the Arbitrator failed to conduct a fair hearing. The Agency argues that the Arbitrator's conduct towards the Agency's female representatives and a female witness was discriminatory. The Agency also argues that the Arbitrator had already decided the case prior to the hearing.

The Agency claims that the Arbitrator badgered Ms. Anne Evans, the Agency's Administrator and stage three grievance official, and clearly demonstrated his sexist, anti-management attitudes. The Agency maintains that the Arbitrator indicated that Evans could not understand the grievant's alleged insolent remarks to be trivial because of her gender. The Agency also claims that the Arbitrator's questioning of the nurse concerning the grievant's hypertension clearly demonstrates that the Arbitrator had reached the conclusion that the discussion between the grievant and the Captain on November 30 was in the context of a "robust discussion." In support of these claims, the Agency submitted portions of the transcript of the arbitration proceedings.

The Union contends that the Agency is merely asserting its dissatisfaction with the award and provides no basis for finding the award deficient.

B. Analysis and Conclusions

The Authority will find an award deficient when it is established that there was partiality or corruption on the part of the arbitrator. For example, Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18 (1981) (Fort Campbell). Among the cases cited by the Authority in Fort Campbell was Amerada Hess Corporation v. Local 22026 Federal Labor Union, 385 F. Supp. 279 (D.N.J. 1974) (Amerada Hess). In Amerada Hess the court stated that when a claim of partiality is made, "the court must ascertain from such record as is available whether the arbitrators' conduct was so biased and prejudiced as to destroy fundamental fairness." 385 F. Supp. at 281 (quoting Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F. Supp. 549, 551-52 (S.D.N.Y. 1968). The court in Toyota of Berkeley v. Automobile Salesmen's Union, Local 1095, 834 F.2d 751 (9th Cir. 1987), cert. denied, 486 U.S. 1043 (1988), reviewed the standards that have been applied by courts when a party seeks to have an arbitration award vacated on the ground that the arbitrator was biased. That court noted that in the Ninth Circuit the party challenging the award has the burden of proving specific facts indicating improper motives. 834 F.2d at 755 (citing Sheet Metal Workers International Association, Local Union 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 745-46 (9th Cir. 1985)). The court further noted that other courts have held that evident partiality would be found: (1) when a reasonable person would conclude that the arbitrator was partial (citing Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds, 748 F.2d 79, 83-84 (2d Cir. 1984)); (2) when the circumstances are powerfully suggestive of bias (citing Merit Insurance Company v. Leatherby Insurance Company, 714 F.2d 673, 681-82 (7th Cir.), cert. denied, 464 U.S. 1009 (1983)); and when the evidence of impropriety is direct, definite, and capable of demonstration (citing Ormsbee Development Co. v. Grace, 668 F.2d 1140, 1150 (10th Cir.), cert. denied, 459 U.S. 838 (1982)). Id. at 755-56.

We conclude that the specific facts and evidence submitted by the Agency to support its exception fail to provide a basis for finding the award deficient. We have carefully reviewed the submitted transcript, and we are not persuaded that the Arbitrator's comments that men and women communicate differently and that the grievant's allegedly insolent remarks were trivial and were made in the context of a robust discussion establish that the Arbitrator was biased, partial, or had prejudged the case under any of the tests commonly applied by Federal courts in private sector labor relations cases. In our view, the Agency has failed to demonstrate any impropriety that destroyed the fundamental fairness of the arbitration proceedings. Accordingly, we deny this exception.

V. Third Exception

A. Positions of the Parties

The Agency contends that the award is contrary to the evidence and fails to properly credit the testimony of management's witnesses.

The Agency argues that the award is deficient in these respects because the Arbitrator did not understand the manner in which the guard force operates and did not take into consideration any of the following: (1) the reason for the Agency's existence; (2) the seriousness of the grievant's behavior; (3) the Captain's report of the December 7 AWOL incident; or (4) the grievant's past instances of insolence and disrespect to a supervisor. The Agency also argues that contrary to the statements or findings of the Arbitrator: (1) the grievant was not in his role of Union president when the insolent remarks were made; (2) the grievant was clearly insolent and insubordinate; (3) the order for the grievant to return to work on November 30 was consistent with the official time provisions of the collective bargaining agreement; (4) the grievant did not act in good faith on November 30; (5) the evidence never established that the grievant was under stress from the Captain's failure to grant him official time; (6) the evidence never established that the Captain's door was closed on December 7; and (7) the grievant abused his privilege to be granted official time. The Agency also asserts that, if its representatives had been present at the hearing, the Agency would have rebutted with evidence or testimony the following statements or findings by the Arbitrator: (1) that the Agency's personnel management specialist suggested to the grievant that he not run for re-election as local Union president and that he step down as local Union president; (2) that there was general dissatisfaction with the Captain; and (3) that there was a failure to respond forthrightly to the grievant's request for information concerning the denial of his sick leave request for November 30.

The Union contends that the Agency's exception only demonstrates the Agency's disagreement with the Arbitrator's interpretation and evaluation of the evidence and is an attempt by the Agency to relitigate the entire case.

B. Analysis and Conclusions

We conclude that the Agency's exception fails to establish that the award is deficient. The Agency's arguments constitute nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement, findings of fact, and evaluation of the evidence and testimony, and they constitute an attempt to relitigate the merits of the case before the Authority. As such, the exception provides no basis for finding the award deficient. See, for example, Hill Air Force Base, 38 FLRA 337; Brookhaven Service Center, 37 FLRA 1176. Furthermore, the Agency's failure to rebut certain statements or findings by the Arbitrator was directly caused by the failure of its representatives to remain throughout the proceedings, which the Agency has failed to justify. As the Authority has indicated, a party abandons an arbitration proceeding at its peril and "cannot now complain that it chose to stay away." American Federation of Government Employees and Social Security Administration, 25 FLRA 173, 175 (1987) (quoting Amalgamated Meat Cutters v. Penobscot Poultry Co., 200 F. Supp. 879 (D. Me. 1961)). Accordingly, we deny this exception.

VI. Fourth Exception

A. Positions of the Parties

The Agency contends that the award of $650 as reimbursement of the fee of Mr. Michael Doring is contrary to regulations implementing the Back Pay Act, 5 U.S.C. º 5596. The Agency argues that under the Back Pay Act, reasonable attorney fees can only be paid to members of the Bar or to law clerks, paralegals, or law students assisting members of the Bar. The Agency asserts that, to the best of its knowledge, Doring is not a member of the Bar and was not assisting a member of the Bar.

In its opposition, the Union does not address the $650 fee or Doring's profession.

B. Analysis and Conclusions

The Authority has repeatedly held that an award of attorney fees under the Back Pay Act requires a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement. For example, U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186, 191 (1990) (Ft. Eustis). In Ft. Eustis, we further held that awards granting attorney fees without the required support will be found deficient and will be set aside or modified as appropriate. Id.

In this case, we conclude that the award of $650 is contrary to the Back Pay Act because the Arbitrator awarded "legal fees" without the proper support. In particular, the Arbitrator did not, in a fully articulated decision, set forth the specific findings supporting the determination. Furthermore, the Agency has claimed that Doring did not participate in any capacity that would authorize the payment of attorney fees under the Back Pay Act and 5 C.F.R. º 550.807(f). Specifically, the Arbitrator did not establish that the attorney fees met the requirement of 5 C.F.R. º 500.807(f) that "attorney fees shall be allowed only for the services of members of the Bar and for the services of law clerks, paralegals, or law students, when assisting members of the Bar." The Agency's claim has not been rebutted by the Union, and, as Doring is neither a member of a law firm nor a union-employed attorney, it is not apparent that Doring's participation warranted an award of attorney fees. Likewise, the fee could not be awarded as a witness fee because such fees are not authorized under the standards of the Back Pay Act. Bennett v. Department of the Navy, 699 F.2d 1140, 1145 (Fed. Cir. 1983) (witness fees are not awardable in an administrative proceeding under the Civil Service Reform Act); Ramirez v. EEOC, 32 M.S.P.R. 228 (1987) (witness fees are not awardable under 5 U.S.C. º 7701(g) in cases where there is no finding of discrimination). Finally, it is not otherwise apparent that there is any other statutory authority authorizing the reimbursement of the fee. Thus, the award requires the Agency to expend funds in the absence of statutory authority and is contrary to law. See U.S. Department of the Army Missile Range, White Sands, New Mexico and National Federation of Federal Employees, Local 2049, 38 FLRA 258, 262 (1990).

VII. Decision

The award is modified by striking the provision awarding the Union reimbursement of the $650 fee.




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