39:0269(18)AR - - DOD, Defense Logistics Agency and AFGE Local 2144 - - 1991 FLRAdec AR - - v39 p269

[ v39 p269 ]
The decision of the Authority follows:

39 FLRA No. 18








LOCAL 2144




January 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to the award of Arbitrator Robert J. Mueller filed by the Union 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 to the Union's exceptions.

The Union filed a grievance concerning the grievant's 5-day suspension for: (1) quarreling with a contractor; (2) refusing to carry out proper orders; and (3) disregarding a directive. The Arbitrator denied the grievance. For the reasons stated below, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a Contract Administrator at the Agency. On April 19, 1989, the Agency issued a Notice of Proposed Suspension for 5 days to the grievant. The Notice stated the following three reasons for the proposed suspension: (1) first offense of quarreling with a contractor; (2) first offense of refusal to carry out proper orders; and (3) first offense of disregard of a directive. After the grievant responded orally and in writing to the charges, the Agency issued its decision on June 27, 1989, to impose the 5-day suspension. A grievance was filed thereafter and submitted to arbitration.

The Arbitrator considered whether the evidence supported the three charges against the grievant and whether there was just and sufficient cause for imposition of the 5-day suspension. The Arbitrator discussed the three charges in chronological order of their occurrence. With regard to the third charge, disregard of a directive, the Arbitrator determined that the evidence did not support the charge. Inasmuch as no exceptions were taken to the Arbitrator's determination on this charge, we will not discuss it further.

With respect to the second charge, the Arbitrator found that the evidence supported the charge. The Arbitrator noted that the Agency contended that the grievant was given a direct and specific order by his supervisor to prepare a draft modification extending the delivery schedule involving a contract with a contractor. The supervisor directed the grievant to have the draft on his desk by the following morning. The directive was issued to the grievant in the presence of the Administrative Contracting Officer (ACO).

The Arbitrator found that it was undisputed that the following morning the rough draft modification had not been prepared by the grievant and was not on the supervisor's desk as directed. The Arbitrator found that the explanation offered by the grievant to the supervisor was not deemed acceptable and the supervisor thereupon reassigned the matter to another employee who prepared the modification as requested. The Arbitrator noted that both parties presented a considerable amount of evidence and testimony concerning the technicalities and requirements involving the drafting and administration of the type of contracts such as that involved in this case, and found that those technicalities were not relevant to the question of whether or not the grievant failed to comply with a specific directive from his supervisor. The Arbitrator determined that, upon review of the evidence, the "grievant undertook intentional and deliberate actions to frustrate the fulfillment of such order by raising meaningless and obstructionist objections to the issuance of the directed modification." Award at 7. The Arbitrator found that the grievant had not established any justification for having failed to comply with his supervisor's direct order and that the evidence supported the second charge.

The Arbitrator also found that the evidence supported the first charge, regarding the Agency's contention that the grievant had quarrelled with the contractor. Crediting the testimony of two representatives of the contractor, the Arbitrator found that the "grievant did engage in unnecessary argument with representatives" of the contractor on the telephone. Award at 8.

The Arbitrator further found that the 5-day suspension did not violate any law or regulation. As his award, the Arbitrator denied the grievance and sustained the suspension.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator's decisions as to charges 1 and 2 "are not supported by evidence presented verbally and in written form during the arbitration hearing." Exceptions at 1. With respect to the first charge, the Union contends that the Agency failed to show what constitutes "quarrelling" and failed to provide any impartial witnesses to the telephone conversation that supported and led to the charge. Id. The Union contends that the Arbitrator's decision as to this charge is not supported by the evidence presented during the hearing. According to the Union, the Arbitrator improperly credited the testimony of the contractor witnesses as opposed to that of the grievant. The Union contends that the only "'supporting' evidence was offered by the contractor witnesses, who could hardly be called impartial." Exceptions at 2.

With regard to the second charge, the Union argues that the grievant's testimony indicated

that at no time did he ever refuse to take any action proposed, only that he had concerns regarding issuing the modification which he needed assistance/guidance to resolve. A missed deadline is not a refusal to carry out an action. The grievant's testimony clearly indicated that he fully intended to resolve the issue to the satisfaction of all parties.

Exceptions at 3. According to the Union, the Agency failed to prove that the grievant refused to carry out the supervisor's order; rather, according to the Union, the grievant followed the normal chain-of-command by notifying the ACO, who in effect changed the direction the grievant had received from the Branch Chief. In sum, the Union contends that the grievant did not refuse to prepare the modification.

B. Agency's Opposition

The Agency asserts initially that the exceptions should be dismissed because the Union failed to comply with certain procedural requirements of the Authority's Regulations. With respect to the merits of the Union's exceptions, the Agency asserts that the Union's exceptions constitute nothing more than a disagreement with the Arbitrator's findings of fact and evaluation of the evidence. The Agency contends that the Union has failed to demonstrate by a clear preponderance of the evidence that the Arbitrator's determinations with respect to his credibility finding were incorrect. The Agency asserts that the Union has failed to establish that the Arbitrator's determinations were incorrect and that the evidence overwhelmingly demonstrates that the grievant did in fact quarrel with a contractor and disobey a direct order.

IV. Analysis and Conclusions

A. Preliminary Matter

The Agency contends that the Union failed to serve notice of its exceptions by certified mail or in person, and failed to include a proof of service as required by section 2429.27(b) of the Authority's Regulations. The Agency further contends that the Union failed to include copies of the listed enclosures with the copy of the exceptions mailed to the Agency. We note, however, that the Agency received the exceptions by regular mail and that the Agency does not claim, and there is no basis on which to conclude, that the Agency was harmed either by the manner in which the Union's exceptions were served or by the Union's alleged failure to include copies of the listed enclosures with the copy of the exceptions mailed to the Agency. Therefore, we will consider the Union's exceptions. See U.S. Department of Health and Human Services, Social Security Adminsitration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA No. 92 (1990), slip op. at 6; U.S. Department of Defense, Defense Contract Audit Agency, Central Region, 35 FLRA 316, 320 (1990).

B. The Union Has Not Demonstrated That the Award Is Deficient

The Union claims that the Agency failed to prove its case and that the Arbitrator's award was not supported by the evidence. In this regard, the Union takes issue with the Arbitrator's determinations regarding the credibility of the witnesses at the hearing. The Union's assertions do not provide a basis for finding the award deficient under section 7122 of the Statute.

With respect to the Union's contention that the Arbitrator improperly credited the testimony of the contractor witnesses as opposed to that of the grievant, such a contention merely constitutes disagreement with the Arbitrator's evaluation of the evidence and testimony and with his conclusions based on that evaluation, which provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 34 FLRA 850 (1990) (exceptions constituting disagreement with an arbitrator's evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, provide no basis for finding an award deficient). See also U.S. Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, L