39:0994(85)AR - - Army, Fort Campbell, KY and AFGE Local 2022 - - 1991 FLRAdec AR - - v39 p994



[ v39 p994 ]
39:0994(85)AR
The decision of the Authority follows:


39 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

FORT CAMPBELL, KENTUCKY

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2022

(Union)

0-AR-2047

DECISION

March 5, 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 James F. Scearce 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 Arbitrator found that there was just and sufficient cause for the grievant to receive an admonishment and he denied the grievance. For the following reasons, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a utility man in the Agency's Maintenance and Repair Branch, performs repairs at residences and other facilities at the Agency's Fort Campbell, Kentucky base. On April 22, 1990, a resident requested that her air conditioning be checked that day. The grievant was given the assignment.

On April 23, 1990, the resident called the head of the Maintenance and Repair Branch to complain about the grievant's behavior while at her house the day before. At the request of the Branch head, on April 23 the resident prepared a written statement detailing her complaint. The statement was entered into the record at the arbitration hearing. The resident, in her statement, asserted that when the grievant arrived at her home, she let him in and greeted him, but received no response. According to the resident, during the time he was at her house the grievant was rude, slammed doors, and would not respond to her questions or other attempts to communicate.

The Agency conducted an investigation of the matter. During the investigation the grievant essentially denied all the resident's assertions. Although he "purportedly conceded that he might have had other things on his mind, the grievant contend[ed] that [the resident] was lying." Award at 4.

The head of the Maintenance and Repair Branch prepared a "Memorandum for Record," which set forth the assertions of the resident and the grievant. Id. The "Memorandum for Record" also incorporated several "instructions" to the grievant regarding his obligation to be responsive to customers and to improve his attitude. Id. The grievant was informed that if additional complaints were received, formal disciplinary action would be considered. The grievant sought to confront the resident who had complained but the request was denied by the Agency.

A grievance was filed seeking the removal of the "Memorandum for Record." The matter was not resolved and was submitted to arbitration.

The Arbitrator noted that although "charges founded on 'one-on-one' contacts are not the choice basis for drawing conclusions[,] [in view of] the less-stringent rules of evidence in arbitration proceedings," such charges are not summarily dismissed. Id. at 7. The Arbitrator stated that, instead, to "a considerable extent, the test of 'who has what to gain' by such assertions is applied." Id. (emphasis in original). The Arbitrator found that "the grievant could not offer any basis for why [the resident] would raise a complaint against him." Id. The Arbitrator concluded that as there was no discernible reason why the resident would not only complain about the grievant's behavior to his supervisor by telephone, but also reduce such complaint to writing, "the only plausible explanation [was] she had cause to do so." Id. The Arbitrator found that the resident's willingness to memorialize her complaint in writing lent credence to her claim and that unless "it could be shown that this person was a chronic complainer, . . . the assertion raised here must be taken as fact--or at least fact as perceived by [the resident]." Id. The Arbitrator concluded that the record "compel[ed] a conclusion that the complained-of actions by the grievant in this incident were sufficiently proven on the record as being unprofessional in nature as a minimum and worthy of admonishment." Id. at 8. Accordingly, the Arbitrator found that there was just and sufficient cause for the issuance of the "Memorandum for Record" and the grievance was denied.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator "erred in allowing past alleged discourteous behavior, never proven, to be considered and erred in allowing a customer statement . . . to be introduced and considered that could not be and was not proven to have been written by [the resident]." Exceptions at 1. The Union states that it is not the responsibility of the grievant to determine why complaints were made against him and the Union cannot establish whether a person is a chronic complainer because complaints are made to management and not communicated to the Union. The Union argues in any event that in this case there is no proof that the resident actually complained because the letter "could have been written by anyone . . . and the [A]rbitrator erred in accepting the assertion raised here as fact." Id. The Union argues further that the "Memorandum for Record" is not correct or supported by the facts and, because of the failure of the Agency to have the complaining resident appear at the arbitration, "it was not possible to ascertain the true and complete facts in this case." Id.

B. Agency

The Agency argues that to the extent the Union is contending that the grievant's behavior prior to April 22, 1990, was considered by the Arbitrator, the contention is without merit because the Arbitrator's discussion and findings do not include any mention of the grievant's earlier conduct. The Agency maintains that the Union's assertions with respect to the admissibility of the resident's letter of complaint and the weight accorded it by the Arbitrator constitute mere disagreement with the Arbitrator's evaluation of the evidence and do not, therefore, provide a basis for finding the award deficient.

IV. Analysis and Conclusions

We construe the Union's exceptions concerning the evidence relied upon as contentions that the Arbitrator failed to provide a fair hearing and that his award is based on nonfact.

We conclude that the Union has not demonstrated that the Arbitrator's award is deficient on the ground that the Arbitrator denied the Union a fair hearing. In particular, there is nothing in the record before us to indicate that the Arbitrator acted improperly so as to deny the Union an opportunity to present its case or prevent the Union from submitting pertinent and material evidence. As the Authority consistently has held, arbitrators have considerable latitude in the conduct of hearings and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. For example, U.S. Department of the Army, Army Reserve Personnel, St. Louis, Missouri and American Federation of Government Employees, Local 900, 35 FLRA 1200, 1205 (1990) (Army Reserve Personnel, St. Louis).

Moreover, Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides "adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator" and that parties to arbitration do not have an absolute right to cross-examination but must be given an adequate opportunity to present evidence and arguments. See Sunshine Mining Company v. United Steelworkers of America, 823 F.2d 1289, 1295 (9th Cir. 1987) and cases cited therein.

The Arbitrator's exercise of his authority to conduct the hearing by allowing the Agency to submit the resident's written statement without authentication and without cross-examination of the resident by the Union did not prevent the Union from presenting its case in full to the Arbitrator and did not deny the Union a fair hearing. See U.S. Department of Defense, Dependents Schools, Mediterranean Region and Oversees Federation of Teachers, 36 FLRA 861, 869-70 (1990) (by allowing grievant to give a statement without cross-examination, arbitrator did not deny agency a fair hearing); Library of Congress and American Federation of State, County and Municipal Employees, Local 2910, 32 FLRA 330 (1988) (union exception that arbitrator improperly did not permit grievant to impeach testimony of her own witnesses did not establish that arbitrator failed to conduct a fair hearing). Accordingly, we conclude that this exception provides no basis for finding the award deficient.

We will find an award deficient because it is based on a nonfact when the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA No. 33, slip op. at 6-7 (1991). The Union has failed to establish that the award in this case is based on a nonfact.

The Union asserts that the Arbitrator erred in accepting the resident's complaints as true and in considering the grievant's past alleged misconduct. With respect to the latter contention, there is no indication in the record before us that the Arbitrator considered any alleged discourteous behavior on the part of the grievant other than that which occurred during the incident at issue in the arbitration