41:0504(48)AR - - HHS, SSA, Office of Hearings and Appeals and AFGE Local 3610 - - 1991 FLRAdec AR - - v41 p504



[ v41 p504 ]
41:0504(48)AR
The decision of the Authority follows:


41 FLRA No. 48

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 3610

(Union)

0-AR-1923

DECISION

July 3, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Jonathan E. Kaufmann 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.

This case involves two grievances filed by the Union on behalf of two unit employees. Each grievant was suspended for 5 days for engaging in a fight during office hours. The Arbitrator found that the Agency's decision to suspend the grievants was arbitrary and not in keeping with the parties' collective bargaining agreement. The Arbitrator, therefore, reduced the 5-day suspensions to written reprimands. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient, and we will deny the exceptions.

II. Background and Arbitrator's Award

The incident that gave rise to the suspensions and grievances occurred in the Agency's Norfolk Office of Hearings and Appeals. The two grievants engaged in an altercation in which their immediate supervisor attempted to intervene. On the date of the altercation the office's Chief Administrative Law Judge (Chief Judge) was not present and another judge was in charge of the office. The acting head of the office had a meeting with the participants in the altercation and indicated, after hearing their explanations, that apologies to the staff would be sufficient to resolve the matter. Upon his return, the Chief Judge further investigated the incident after it was learned that the immediate supervisor who was involved had been injured during the altercation. The Chief Judge then proposed 5-day suspensions for each of the two grievants. The suspensions were approved by the Agency's Regional Chief Administrative Law Judge.

The two grievants filed separate grievances over the suspensions. Each grievant requested the removal of the suspension, the restoration of leave and the payment of backpay. The grievances were not resolved and were submitted to arbitration.

The parties did not agree on the issues before the Arbitrator. The Agency contended that the issue was "whether the 5-day suspensions of [the grievants] were for just cause and for such cause as will promote the efficiency of the service." Arbitrator's Award at 8. The Union contended that the issues were: "(1) Were the grievants discriminated against because of their race, sex, national origin, and religion, when they were denied the concept of progressive discipline? (2) If so, were the suspensions legal and double jeopardy? (3) Were the suspensions a result of race, sex, national origin, and religious discrimination? (4) If so, what is the appropriate remedy? (5) Were the grievants denied due process under the national agreement between SSA and AFGE? (6) If so, what were the harmful errors to the Union as well as the grievants? (7) If the answers [sic] to either 5 or 6 is yes, what is the remedy?" Id. at 8-9.

The Agency contended before the Arbitrator that the evidence was more than sufficient to meet its burden of showing by a preponderance of the evidence that its actions were taken for just cause. With respect to the language in the contract regarding progressive discipline, the Agency claimed that it was not obligated to follow that language in all disciplinary actions. It further argued that the Chief Judge examined the seriousness of events and determined what discipline would be reasonable. With regard to the Union's "double jeopardy" claim, the Agency contended that the judge who was acting as office head was not given the authority to render a final decision and it only became apparent after the Chief Judge's return that the supervisor's injuries were serious. The Agency further contended that the Union had not met its burden of proof regarding the claim of discrimination.

The Union argued before the Arbitrator that the suspensions violated the parties' agreement and were discriminatory. The Union noted that the contract provided that discipline was supposed to be progressive in nature and that ordinarily counseling and oral warnings would precede a formal action. The Union asserted that the acting office head properly investigated the incident and determined what the appropriate penalty should be. The Union claimed that the action taken by the Chief Judge was a form of "double jeopardy," in that the grievants were first orally admonished by the acting office head and then were disciplined a second time by the Chief Judge. According to the Arbitrator, the Union's discrimination claim was based on certain comments by the acting office head, the Agency's refusal to supply the Union with some data, the testimony of the grievants, and alleged procedural irregularities.

With regard to the Union's claim that the Agency had unlawfully discriminated against the grievants under Title VII of the Civil Rights Act, the Arbitrator found that the Union had presented sufficient evidence to establish a prima facie case of disparate treatment if he were to draw an adverse inference from the Agency's alleged failure to provide requested information to the Union concerning other disciplinary actions. The Arbitrator further found, however, that even if this were sufficient to constitute a prima facie case, the Agency had offered legitimate non-discriminatory reasons for its actions and the Union was not able to rebut them. Accordingly, the Arbitrator found that the Agency's actions provided "no basis for inferring a discriminatory motive." Id. at 27.

As to the Union's claim that it was not properly notified of the suspension action, the Arbitrator found that while the notice was not sent in a timely fashion, it was received by the Union officer of record one month before the decision was made to suspend the grievants. Thus, he found that the notice had allowed sufficient time for the Union to become involved in the matter.

With regard to the analysis of the grievance under the "just cause" provision of the parties' collective bargaining agreement, the Arbitrator found that the record supported a finding that the grievants were guilty of fighting with each other. Such conduct, the Arbitrator concluded, was not acceptable in an office and violated the Agency's "Standard of Conduct" regulation. He further found that the Chief Judge, as the supervisor of the office, retained the authority to discipline the grievants. Accordingly, he concluded that the Agency had met its burden of establishing that disciplinary action was appropriate.

The Arbitrator found, however, that a lesser penalty than the one given by the Agency would be appropriate. In this regard, the Arbitrator noted that the parties had agreed in the collective bargaining agreement to the concept of progressive discipline. The Arbitrator found that "[w]hile this need not be applied in an inflexible manner, it still obligated Agency representatives to at least consider the circumstances." Id. at 33. The Arbitrator concluded that management had "failed to consider the progressive nature of the penalty, any mitigating factors such as the grievant's records, and the types of discipline given to others guilty of fighting." Id. Accordingly, he found that the Agency had not supported the penalty it had imposed by a preponderance of the evidence. In this regard, the Arbitrator found that the evidence did not support a finding that the injury suffered by the immediate supervisor was a result of being physically struck by the grievants. Although the Arbitrator questioned whether the concept of "double jeopardy" was applicable to this case, he noted that the grievants had received two penalties for the same offense. In sum, the Arbitrator concluded that the Agency's decision to suspend the grievants "was arbitrary and not in keeping with the parties' collective bargaining agreement." Id.

The Arbitrator ordered that the 5-day suspensions be reduced to written reprimands for fighting on the job. He noted that this penalty "balanced the seriousness of the conduct against the brief nature of the incident and the fact that neither individual had ever engaged in such conduct before." Id. at 34.

III. Positions of the Parties

A. The Union

The Union claims that the Arbitrator never understood the provision of the parties' collective bargaining agreement relating to progressive discipline and either disregarded or modified the terms of the parties' agreement by his award. The Union contends that the agreement states that "normally" discipline would be preceded by counseling. Exceptions at 1. It argues that counseling was accomplished when the acting office head met with the grievants and ordered them to apologize for their actions. The Union argues that the acting office head correctly applied this principle. The Union objects, however, to the fact that the grievants were required to apologize to the staff at a formal meeting, even though, according to the Union, counseling and informal warnings should be conducted privately.

The Union also excepts to the Arbitrator's rationale that the failure of management properly to notify the Union of the proposed discipline was not significant. The Union claims that the Agency's improper notice created "undue burdensome trouble" for the grievants, and further, that this was harmful error under Cornelius v. Nutt, 472 U.S. 648 (1985). Exceptions at 2.

The Union also claims that the Arbitrator "did not respond or quickly make a decision" in accordance with the parties' agreement as to certain affidavits it had requested. Id. The Union argues that the affidavits it requested were used to support management's proposed and final decisions to suspend the grievants and that as those affidavits were part of the Agency's investigation of the incident, they should have been submitted into the arbitration record.

The Union also contends that the Arbitrator did not specifically address other Union arguments regarding procedural irregularities committed by management that were in violation of the parties' agreement, such as the failure to notify the Union of a formal meeting. Further, the Union argues that the Arbitrator did not properly consider all the testimony. Specifically, the Union excepts to the Arbitrator's finding that the acting office head on the day of the altercation had no authority to discipline the grievants and that the Chief Judge was the supervisor with that authority.

B. The Agency

The Agency contends that the Union's exceptions do not meet the requirements of section 2425.3 of the Authority's Rules and Regulations. It argues that the Union's exceptions are without merit and do not state any grounds on which review may be granted. The Agency contends that the Union's exceptions amount to nothing more than disagreement with the Arbitrator's findings of fact, reasoning and interpretation of the collective bargaining agreement, and his conclusions. The Agency argues that the Union is attempting "to relitigate the merits of the case by selectively picking, choosing and mischaracterizing testimony from disjointed and isolated portions of a two-day hearing." Agency Opposition at 2. Accordingly, the Agency contends that the Union's exceptions should be denied.

IV. Analysis and Conclusions

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 not established that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector cases.

We construe the Union's arguments that the Arbitrator did not understand the collective bargaining agreement's progressive discipline provision and that he disregarded or modified the terms of the agreement as contentions that the award fails to draw its essence from the parties' agreement. To establish that an award is deficient because it does not draw its essence from an agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard to the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of Transportation, Maritime Administration, James River Reserve Fleet and National Association of Government Employees, Local R4-47, 35 FLRA 1213, 1215-16 (1990).

The Union has not demonstrated that the award is deficient under any of these tests. Instead, we conclude that the Union's arguments are an attempt to relitigate the merits of the grievance before the Authority and constitute mere disagreement with the Arbitrator's decision that the grievants should be given written reprimands for fighting on the job. Disagreement with an arbitrator's evaluation of evidence, findings and conclusion based thereon provides no basis for finding an award deficient. U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94, 97-98 (1991).

The Union contends that the Arbitrator's award is deficient because he did not respond or quickly make a decision regarding the Union's access to certain affidavits and his failure to require their inclusion in the arbitration record. We construe this argument as asserting that the Arbitrator denied the Union a fair hearing.

In this regard, the Authority will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to hear pertinent and material evidence. See, for example, Warner Robins Air Logistics Center, Department of the Air Force, Warner Robins, Georgia and American Federation of Government Employees, Local No. 987, 24 FLRA 968 (1986). An arbitrator has considerable latitude in the conduct of a hearing, however, 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. See, for example, U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Allenwood, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148, 35 FLRA 827 (1990). In order to demonstrate that an arbitrator failed to conduct a fair hearing, it must be shown that the arbitrator refused to hear pertinent or material evidence or otherwise prejudiced a party in some way. Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 351 (1990)

In this case, we find that the Union has failed to substantiate that it was denied a fair hearing by the Arbitrator's failure to respond or quickly make a decision regarding the Union's access to certain affidavits allegedly used by the Agency in its decision to suspend the grievants and his failure to require that those affidavits be placed in the arbitration record. We do not find that the grievants were prejudiced by the absence of this evidence. Nothing in the Union's exceptions convinces us that the allegedly missing evidence would have been material to the outcome of this case. We note that the Arbitrator drew an adverse inference in the Union's favor regarding the failure of the Agency to produce other evidence. Moreover, relying on the evidence in the record, the Arbitrator ruled that the Agency's decision to suspend the grievants was arbitrary. Finally, it is clear from the award that the Arbitrator considered testimony from all of the participants in the incident. In these circumstances, we conclude that the absence of the affidavits in question did not prejudice the Union. Accordingly, we conclude that the Union was not denied a fair hearing.

Further, we reject the Union's contention that the Agency committed harmful error by failing to properly notify the Union of the proposed discipline. The Authority has repeatedly held that the harmful-error rule, as interpreted by the Supreme Court in Cornelius v. Nutt, is not required to be applied to arbitrations of suspensions of 14 days or less. For example, U.S Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA No. 18 (1991); Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 34 FLRA 712, 714-15 (1990). Therefore, we will deny this exception.

The Union also contends that the Arbitrator's award is deficient because: (1) with regard to the discrimination claims, the Arbitrator did not specifically address alleged procedural irregularities committed by management; (2) the Arbitrator did not properly consider all the testimony; and (3) the Arbitrator erred in finding that the acting office head had no authority to discipline the grievants. We view these other exceptions as an attempt to relitigate the merits of the grievance before the Authority. As such, they constitute mere disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement and his reasoning and conclusions in ordering