42:0890(63)AR - - SBA, Washington, DC and AFGE Local 2106 - - 1991 FLRAdec AR - - v42 p890
[ v42 p890 ]
The decision of the Authority follows:
42 FLRA No. 63
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 James T. Youngblood 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 the grievant's 8-day suspension for insubordination was for just cause and denied the grievance. The Arbitrator also found that the Agency had not improperly denied the grievant official time.
For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, the Union's exceptions will be denied.
II. Background and Arbitrator's Award
The grievant, a writer-editor in the Agency's Office of Public Communications, is responsible for writing articles concerning the Agency's functions and accomplishments.
The grievant requested and was denied a byline on an article he prepared for outside publication. The grievant responded to the denial of his request in a letter to his second-level supervisor. Subsequently, citing certain statements made by the grievant in that letter, the second-level supervisor proposed a 14-day suspension of the grievant for: (1) "knowingly making false statements which are slanderous and defamatory about other employees and officials . . ."; and (2) "insubordination . . . ." Award at 8.
The grievant was advised that he had 7 calendar days to respond, orally and/or in writing, to the proposed suspension and that he would be granted up to 4 hours of official time to prepare his response(s). The grievant requested a 3-day extension of time and 16 more hours of official time. The deciding official granted the requested extension of time but denied the additional official time. The grievant then requested an additional 2-week extension of time as well as an additional 40 hours of official time. The deciding official allowed the grievant 1 additional day and 2 additional hours of official time. The grievant presented oral and written responses.
In the Agency's decision letter, the deciding official informed the grievant that the record did not support the charge that the grievant knowingly made false statements. However, the deciding official sustained the charge of insubordination. The suspension was reduced to 8 calendar days.
A grievance was filed "alleging that the '[e]mployee was harassed and improperly suspended from duty and pay. In addition, grievant was improperly denied official time and forced to use his own time to respond to the proposed suspension.'" Id. at 9 (quoting grievance). As remedies, the grievant sought, among other things, rescission of the suspension, backpay with interest, and compensation for the personal time spent preparing the oral and written responses. When the grievance was not resolved, it was submitted to arbitration.
The parties did not stipulate the issues to be resolved by the Arbitrator. The Union presented the following issues:
1. Did the [Agency] carry its burden of demonstrating just and sufficient cause for [the grievant's] suspension . . . ?
2. Was [the grievant's] . . . memorandum excusable . . . ?
3. Was the suspension enforced on [the grievant] impermissibly tainted by extraneous factors . . . and inconsistent with the Master Agreement?
4. Did the [Agency] violate the procedural mandates of the Master Agreement . . . ?
5. Did the [Agency] deny [the grievant] sufficient official time to prepare his response to the proposed suspension and prepare for the arbitration [h]earing . . . ?
6. Are [the grievant and the Union] entitled to attorney's fees . . . ?
Id. at 9-10.
The Agency framed the issues as follows:
1. Whether the Agency's suspension of the grievant for eight calendar (five paid days) . . . was for just cause, and if so, whether the penalty was appropriate.
2. Whether the Agency acted properly when it granted grievant six hours of official time to work on his response to the proposed suspension . . . .
Id. at 10.
Before the Arbitrator, the Union argued that the grievant's suspension violated Article 38, Section 1(b) of the parties' collective bargaining agreement because the suspension was not issued for just cause.(1) The Union asserted that the grievant's letter did not constitute insubordination and that the definition of insubordination contained in Agency Standard Operating Procedure 37 35 2 (SOP 2) did not apply because it had not been negotiated with the Union.(2) In addition, the Union asserted that the definition of insubordination in the SOP conflicted with Article 40 of the parties' agreement, entitled "Grievance Procedure," which, according to the Union, "encourages informal discipline." Award at 11. The Union argued that even if the grievant had been insubordinate, the Agency violated certain procedural requirements in the parties' agreement and, due to mitigating circumstances, the 8-day suspension was excessive. Finally, the Union argued that the Agency violated Article 11, Section 2.2 of the parties' agreement by denying the grievant's requests for additional official time.(3)
The Arbitrator upheld the 8-day suspension. The Arbitrator first examined the disputed statements in the grievant's letter. In the Arbitrator's view, "[i]t would be very difficult to read the [grievant's] letter and conclude that [the grievant] meant anything other than disrespect and insolence towards [the second-level supervisor]." Award at 11. Accordingly, noting that SOP 2 defined insubordination as including disrespect and insolence, the Arbitrator concluded that the grievant "was guilty of insubordination, as defined, unless such a finding [was] foreclosed for other reasons." Id.
Next, the Arbitrator found that SOP 2 was enforceable. The Arbitrator noted that SOP 2 predated the effective date of the parties' agreement and stated that, as such, it was not "subject to the current contract." Id. at 11.(4) Moreover, the Arbitrator held that even if SOP 2 were subject to bargaining under the agreement, the record before him did not indicate "that the Agency was remiss in giving notice, it simply indicates the absence of bargaining for whatever reason." Id. Finally, the Arbitrator found no conflict between SOP 2 and Article 40 of the parties' agreement. According to the Arbitrator, Article 40 had "absolutely nothing to do with punishment or discipline by the Agency except that punishment or discipline might cause the filing of a grievance." Id.
The Arbitrator also rejected the Union's assertions that the grievant's letter was excusable because, among other things, it was made in response to unfair accusations by the grievant's supervisor. The Arbitrator stated that even if the grievant had been unjustly accused of wrongdoing, his insubordination was subject to discipline. Moreover, the Arbitrator concluded that the 8-day suspension was appropriate. The Arbitrator found, in this regard, "no mitigating circumstances." Id. at 13. The Arbitrator also found that the Agency did not violate procedural requirements set forth in the parties' agreement in proposing and effecting the suspension.
Finally, the Arbitrator determined that the grievant had not been improperly denied official time. The Arbitrator found no contractual requirement that the Agency grant the grievant the official time he requested. The Arbitrator noted, in addition, that the Agency had granted the grievant more time than required under an Agency SOP.
As his award, the Arbitrator denied the grievance and the grievant's request for monetary compensation covering the denial of official time. The Arbitrator also determined that an award of attorney's fees was inappropriate in light of his decision and award.
III. Preliminary Matter
The Agency moves to strike three exhibits included with the Union's exceptions on the basis that the exhibits were not presented to the Arbitrator. The Agency notes that two of the three exhibits came into existence after the arbitration hearing.
Arbitration awards are not subject to review on the basis of evidence in existence at the time of the arbitration, but not presented to the arbitrator, or evidence that comes into existence after the arbitration. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 38 FLRA 369, 383 (1990). Two of the three disputed exhibits were not in existence at the time of the arbitration hearing and there is no indication in the record that the third was presented to the Arbitrator. Therefore, the three exhibits will not be considered here.
IV. The First Exception
A. Positions of the Parties
The Union contends that the Arbitrator "failed to conduct a fair hearing." Exceptions at 4. The Union asserts that the Arbitrator "exhibited bias" by: (1) interrupting the grievant's attorney's presentation of the grievant's case; (2) "favoring" testimony by Agency witnesses; and (3) "entertaining . . . Agency . . . overtures to him." Id. at 4-5. The Union also cites as bias the Arbitrator's refusal to hear certain Union arguments relating to Agency actions taken after the grievant's suspension.
The Agency contends that the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing and, with respect to the Union's assertion regarding Agency actions taken after the disputed suspension, asserts that such actions were not encompassed by the grievance.
B. Analysis and Conclusions
We reject the Union's argument that the Arbitrator failed to conduct a fair hearing. 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, 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, 829 (1990). However, an arbitrator has considerable latitude in the conduct of a hearing, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, standing alone, provide a basis for finding an award deficient. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1042 (1991).
The Union has not established that the Arbitrator refused to hear pertinent and material evidence or otherwise failed to conduct 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 adequately to present its case or prevent it from submitting pertinent and material evidence. Rather, the Union simply disagrees with the manner in which the Arbitrator conducted the hearing. Such disagreement provides no basis for finding the award deficient. See, for example, Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA 830, 834 (1990).
Similarly, the Union has not demonstrated that the Arbitrator was biased. To demonstrate arbitral bias, it must be shown, for example, that an award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. See, for example, Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 352 (1990). The Union has not shown that the award is deficient under any of these tests. Rather, the Union's contentions constitute mere disagreement with the Arbitrator's findings and conclusions and provide no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 415 (1991).
With regard to the Union's contention that the Arbitrator improperly excluded testimony concerning Agency actions subsequent to the suspension, there is no indication that the issues before the Arbitrator encompassed such actions. The award indicates that the parties did not stipulate the issues to be resolved. Moreover, neither party's statement of the issues to be addressed encompassed Agency actions subsequent to the suspension. Accordingly, the Union has not demonstrated that the award is deficient because the Arbitrator excluded testimony regarding such actions.
V. The Second Exception
A. Positions of the Parties
The Union argues that the Arbitrator exceeded his authority when he relied on SOP 2 in sustaining the grievant's suspension. According to the Union, the Arbitrator could not rely on that SOP because it was not bargained with the Union.
The Union also contends that the Arbitrator exceeded his authority by failing to grant the grievant official time to prepare his response to the proposed suspension and to prepare for the arbitration hearing. The Union asserts that the parties' agreement provides whatever official time is authorized by section 7131(d) of the Statute, including official time for employees. According to the Union, the Arbitrator's failure to find that the agreement required the Agency to grant the grievant's requests for official time "evidences a manifest disregard of the agreement." Exceptions at 17 (footnote omitted).
The Agency maintains that the Union has failed to establish that the award does not draw its essence from the collective bargaining agreement.
B. Analysis and Conclusions
An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration, or awards relief to persons who are not encompassed within the grievance. American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 38 FLRA 600, 606 (1990). As the Union does not contend that the Arbitrator either resolved an issue not before him or granted relief to anyone not a party to the grievance, we reject the Union's contention that the Arbitrator exceeded his authority.
We will, however, construe the Union's second exception as encompassing an allegation that the award fails to draw its essence from the collective bargaining agreement. To demonstrate that an award is deficient on this ground, it must be shown 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 the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1048 (1991).
The Union has not demonstrated that the award is deficient under any of these criteria. The Arbitrator concluded that as SOP 2 was issued prior to the effective date of the parties' collective bargaining agreement, it was not subject to the agreement. Further, he found that the SOP did not conflict with the agreement. With respect to official time, he found that the agreement did not authorize the official time sought by the grievant. The Union has not shown that the Arbitrator's conclusions concerning SOP 2 or his interpretation of the portions of the parties' agreement regarding official time are irrational, implausible, or unconnected to the wording and purpose of the agreement. As such, the Union has not established that the award fails to draw its essence from the agreement.
VI. The Third Exception
A. Positions of the Parties
The Union contends that the award is deficient because the Arbitrator made two errors which "represent gross mistakes of fact but for which a different result would have been reached." Exceptions at 17-18. The Union identifies the two mistakes of fact as: (1) the Arbitrator's finding that SOP 2 was not subject to bargaining under the parties' agreement; and (2) the Arbitrator's conclusion that the parties' agreement does not encompass official time for employees.
The Agency contends that the Union has not established that the award is based on nonfacts. The Agency maintains that the facts identified by the Union "are actually conclusions as to what the contract requires." Opposition at 6.
B. Analysis and Conclusions
We will find an award deficient under the Statute because it is based on a nonfact if 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 Defense Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 867 (1990). The Union has not established that the award in this case is based on a nonfact.
The Arbitrator found that there was no obligation under the collective bargaining agreement to negotiate over SOP 2 because it predated the agreement. The Union does not contend that this finding is erroneous. Instead, the Union disputes the Arbitrator's finding that bargaining over the SOP was not required under the agreement. As such, the Union's argument addresses the Arbitrator's conclusion, not a fact. Similarly, the Arbitrator's finding that the agreement does not authorize official time for the grievant does not constitute a fact. This finding is based on the Arbitrator's interpretation and application of the agreement. As the disputed conclusions by the Arbitrator are not facts, the Union has failed to demonstrate that the award is deficient because it is based on nonfacts. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA 430, 435-36 (1991).
VII. The Fourth and Fifth Exceptions
A. Positions of the Parties
The Union contends that "[t]he Arbitrator's denial of official time to the grievant to pursue his case denies the Union and the grievant equal protection of the law, since this violates [s]ection 7131(d)(2) of the Statute and gives [the Agency] an unfair advantage with respect to the Union when 'binding arbitration' is being pursued." Exceptions at 22 (emphasis in original). The Union further argues that:
it is inherently unconstitutional to give one party, the Agency, unlimited official time to propose and prosecute disciplinary and adverse actions against employees, and then to deny unit employees official time to adequately defend against the charges and prepare for any hearings that may result. . . .
Id. at 23 (emphasis in original).
The Union also argues that the Arbitrator's reliance on SOP 2 conflicts with the Agency's obligation under the Statute to bargain in good faith with the Union. In the Union's view, the Arbitrators reliance on SOP 2 "constitutes or encourages unfair labor practices . . . in violation of [s]ection 7116(a)(1) and (5) of the Statute, since the Arbitrator's Award attempts to excuse the Agency for failing or refusing to consult or negotiate in good faith with the Union as required by the Statute." Id. at 25. In addition, the Union argues that the Arbitrator's refusal to grant the grievant official time violates various employee rights, including those contained in section 7102 of the Statute.
The Agency asserts that the Union incorrectly construes section 7131(d) of the Statute as authorizing official time to carry out all representational activities. According to the Agency, section 7131(d) "allows the parties to negotiate amounts of official time that are reasonable, necessary, and in the public interest." Opposition at 7. The Agency maintains that the parties negotiated an agreement concerning official time and the Arbitrator applied it.
B. Analysis and Conclusions
We reject the Union's assertion that the a