44:0103(9)AR - - Defense Mapping Agency, Hydrographic / Topographic Center and AFGE Local 3407 - - 1992 FLRAdec AR - - v44 p103



[ v44 p103 ]
44:0103(9)AR
The decision of the Authority follows:


44 FLRA No. 9

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY

HYDROGRAPHIC/TOPOGRAPHIC CENTER

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3407

(Union)

0-AR-2165

DECISION

February 26, 1992

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 Dale M. Race, Jr. filed by the Agency 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 Agency's exceptions. The Agency filed a response to the Union's opposition, and the Union responded to the Agency's submission.(1)

A grievance was filed after the Agency suspended the grievant for 14 days. The Arbitrator sustained the grievance.

For the reasons which follow, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant received a 14-day suspension for allegedly engaging in disruptive conduct and sexual harassment in the workplace. A grievance was filed over the suspension and, when the grievance was not resolved, it was submitted to arbitration. The issue, as stipulated by the parties, was "[w]hether the Grievant's conduct warranted a 14 day suspension[.]" Award at 2. Another issue, as set forth by the Agency, was "[w]hether the Grievance was timely filed and/or procedurally arbitrable[.]" Id.

According to the Arbitrator, the incidents leading to the grievant's suspension began when the grievant "began shouting incoherently, mounted a table, [and] became involved in confrontations with other employees[.]" Id. at 5. The Arbitrator also found that later on the same day, the grievant entered a guardhouse occupied by a female security guard "and attempted to kiss her." Id.

Initially, the Arbitrator determined that the grievance was timely filed. The Arbitrator found that the Agency failed to respond to the grievance after it was filed, and that the Union took no further action on the grievance for approximately 3 months. However, the Arbitrator concluded that the Agency's failure to respond did not "trigger a Union obligation to either proceed to the next step or forfeit prosecution of the grievance." Id. at 8. Noting that a party who refuses or fails to comply with the steps of a grievance procedure "will not be permitted to prevent arbitration[,]" the Arbitrator found that the grievance was arbitrable. Id.

The Arbitrator noted that the grievant had received psychiatric treatment and concluded that, on the day the alleged misconduct occurred, the grievant "suffered a sudden and severe mental breakdown" which was caused by work-related factors. Id. at 7. In the Arbitrator's view, this matter was "not a disciplinary case of any coloration." Id. at 9. The Arbitrator concluded that the grievant's conduct was caused by "something other than a bad act state of mind . . . ." Id.

Accordingly, the Arbitrator rescinded the 14-day suspension and awarded backpay and benefits for the period of the suspension. The award also stated that the Union could request attorney fees.

III. First Exception

A. Positions of the Parties

The Agency contends that the award is deficient because the Union failed to process the grievance in a timely manner and that this failure "constitutes abandonment of the grievance." Exceptions at 8.

The Union argues that this exception should be denied because the Agency is attempting "to relitigate its jurisdictional challenge . . . ." Opposition at 4.

B. Analysis and Conclusions

We construe the Agency's argument that the Arbitrator "erroneously determined that the grievance was timely in accordance with the Collective Bargaining Agreement[]" as an assertion that the award fails to draw its essence from the agreement. Exceptions at 8. In order to demonstrate that an award fails to draw its essence from the agreement, the Agency must show that the award: (1) cannot in any rational way be derived from the agreement; or (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; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 40 FLRA 214, 218 (1991) (Tinker Air Force Base).

The Agency has not demonstrated that the award is deficient under any of these tests. Based on his interpretation of the parties' agreement, the Arbitrator concluded that the grievance was arbitrable. The Arbitrator determined that a party who "fails to comply properly with the negotiated steps of the grievance procedure will not be permitted to prevent arbitration[.]" Award at 8. We conclude that the Agency's exception amounts to mere disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement and the application of those requirements to the grievance before him. The Authority has consistently held that disagreement with an arbitrator's determinations concerning procedural arbitrability generally provides no basis for finding an award deficient. See Tinker Air Force Base, 40 FLRA at 219. Accordingly, we will deny this exception.

IV. Second Exception

A. Positions of the Parties

The Agency argues that the award is based on a nonfact. According to the Agency, the Arbitrator's findings that the grievant suffered a mental breakdown on the day the alleged misconduct occurred and that the breakdown was caused by work-related factors are unsupported.

The Union asserts that the Arbitrator's finding that the grievant suffered a mental breakdown on the date of the conduct at issue is "supported by ample medical evidence in th[e] record and thus not 'indisputably erroneous.'" Opposition at 8 (emphasis in original). The Union also asserts that the Arbitrator's finding that the grievant's breakdown was work-related "was not 'central to the result of the award.'" Id. at 7.

B. Analysis and Conclusions

We will find an award deficient because it is based on a nonfact when the contending party establishes that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 889, 893 (1991).

In this case, the Arbitrator determined that the grievant "suffered a sudden and severe mental breakdown" on the day the alleged misconduct occurred. Award at 7. Based on this conclusion, the Arbitrator found that discipline was not appropriate. The Arbitrator noted that the Agency had referred the grievant to a psychiatrist and that, as of the date of the hearing, the grievant "was still receiving medical treatment for [a] 'manic-depressive disorder.'" Id. at 6.

The Agency fails to establish that the Arbitrator's factual findings regarding the grievant's mental condition are clearly erroneous. Consequently, there is no basis for concluding that the award is based on a nonfact and is, therefore, deficient. Accordingly, we will deny this exception.

V. Third Exception

A. Positions of the Parties

The Agency asserts that the award conflicts with Title VII of the Civil Rights Act of 1964, as amended, and various regulatory provisions concerning sexual harassment. The Agency contends that the award ignores legal requirements that the Agency "act to correct sexually inappropriate behavior in the workplace." Exceptions at 15. The Agency also claims that the award conflicts with the Rehabilitation Act of 1973, as amended. The Agency asserts that the grievant failed to establish that he had a handicap or that such handicap, if it existed, "would excuse his behavior[.]" Id. at 18.

The Union contends that the award "is not contrary to any law, rule or regulation." Opposition at 9. The Union argues that the Arbitrator determined that the grievant's suspension was inappropriate based on medical evidence which demonstrated that the grievant "suffered from a mental breakdown on the date of the conduct at issue . . . ." Id. at 10.

B. Analysis and Conclusions

The Agency has not established that the award conflicts with Title VII of the Civil Rights Act of 1964, as amended, or with legal requirements that the Agency "correct sexually inappropriate behavior . . . ." Exceptions at 15. The Agency's argument presumes that the grievant engaged in sexual harassment. However, the Agency has not shown that, as a matter of law, the grievant's conduct constituted sexual harassment. Moreover, the Arbitrator concluded that the grievant's conduct did not merit disciplinary action, and the Agency has not cited any statutory or regulatory provision, and we are not aware of any, that would preclude the Arbitrator from determining, in these circumstances, that the grievant's discipline was inappropriate. Consequently, we reject the Agency's assertion that the award is inconsistent with statutory and regulatory prohibitions against sexual harassment.

We also conclude that the Agency has failed to establish that the award is contrary to the Rehabilitation Act, which addresses a Federal agency's responsibilities concerning qualified employees with handicapping conditions. See 40 FLRA at 219. Nothing in the award indicates that the grievant was a qualified employee with a disability, within the meaning of this Act, and the Agency has not demonstrated that the Rehabilitation Act is otherwise applicable. Moreover, insofar as the Agency is arguing that the Arbitrator could not use the grievant's mental condition as a basis for setting aside the grievant's discipline, we disagree. It is well established that an arbitrator properly may determine that all or part of a disciplinary penalty is not for just cause and may set aside or reduce the penalty. See U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 327 (1991) (Naval Aviation Depot).

The Agency's reliance on the Rehabilitation Act is without merit and the Agency has not demonstrated that the award conflicts with statutory or regulatory prohibitions against sexual harassment. Accordingly, we will deny this exception.

VI. Fourth Exception

A. Positions of the Parties

The Agency contends that it "was denied a fair hearing in that surprise hearsay evidence was permitted . . . as the sole evidence to establish that [the] grievant was not responsible for his behavior." Exceptions at 18. Specifically, the Agency argues that the Arbitrator should not have considered a letter from the grievant's physician and certain other medical reports because: (1) the documents were not in affidavit form; (2) the documents contradicted other evidence submitted by the grievant; and (3) the Union offered no explanation for its failure to call the grievant's physician as a witness.

The Union claims that the Agency "had at least two weeks advance notice that the medical documentation would be used in the arbitration." Opposition at 8 n.2. The Union also contends "that witnesses are not required to appear before the Arbitrator[.]" Id.

B. Analysis and Conclusions

The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1178 (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 in and of itself provide a basis for finding an award deficient. See, for example, Veterans Administration and VA Medical Center Register Office and American Federation of Government Employees, Local 1509, 34 FLRA 734, 738 (1990) (Veterans Administration). Further, 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. See U.S. Department of the Army, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 39 FLRA 994, 997 (1991) (Department of the Army).

We reject the Agency's contention that the award is deficient because the Arbitrator improperly considered a letter from the grievant's physician and certain other medical reports. The liberal admission by arbitrators of testimony and evidence is a permissible practice. See Veterans Administration, 34 FLRA at 738. In our view, the Agency's argument constitutes mere disagreement with the manner in which the Arbitrator conducted the hearing and with the Arbitrator's evaluation of the evidence. See, for example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California, 40 FLRA 1012, 1015 (1991). The Agency has not established that the Arbitrator's acceptance of the disputed medical evidence prevented the Agency from presenting its case in full to the Arbitrator or denied the Agency a fair hearing. Accordingly, we conclude that this exception provides no basis for finding the award deficient. See Department of the Army, 39 FLRA at 997.

VII. Fifth Exception

A. Positions of the Parties

The Agency claims that the award "is inconsistent with 5 U.S.C. 7106 and 5 CFR 751 because it restricts management's right to discipline and failed to dispose of the principal charge against the grievant." Exceptions at 20.(2) The Agency also contends that the award restricts its right to take future disciplinary action against the grievant.

The Union contends that this exception constitutes mere disagreement with the Arbitrator's award.

B. Analysis and Conclusions

The issue before the Arbitrator, as stipulated by the parties, was whether the grievant's conduct warranted a 14-day suspension. The Arbitrator concluded that it did not and set aside the suspension. Consequently, we find that the Arbitrator resolved the issue before him. As we noted previously, it is well established that an arbitrator properly may determine that all or part of a disciplinary penalty is not for just cause and may set aside or reduce the penalty. See Naval Aviation Depot, 42 FLRA at 327. Accordingly, we reject the Agency's assertion that the award impermissibly interferes with its right to discipline under section 7106(a)(2)(A) of the Statute and/or is inconsistent with 5 C.F.R. Part 752.

We also reject the Agency's assertion that the award restricts the Agency's right to take future disciplinary action. The Arbitrator noted that the grievant's future employment with the Agency depended on the grievant obtaining a security clearance and stated that "if the Grievant's employment is terminated it will be for medical reasons and not for misconduct of any sort." Award at 10. However, the Arbitrator's award expressly states that "[n]o discipline is warranted in this case." Id. (emphasis added). Moreover, when the award is read as a whole, we find no basis on which to conclude that the award applies to, or restricts, future Agency action. Compare U.S. Department of Health and Human Services, Austin, Texas and National Treasury Employees Union, Chapter 219, 40 FLRA 1035, 1041-42 (1991) (portion of award which required agency to impose 5-day suspension on grievant for future misconduct found to directly interfere with management's right to discipline). Accordingly, we will deny this exception.

VIII. Sixth Exception

A. Positions of the Parties

The Agency asserts that the Arbitrator awarded attorney fees and, therefore, that he "failed to set forth specific findings . . . as mandated" by 5 U.S.C. º 5596. Exceptions at 23.

In the Union's view, the Arbitrator did not award attorney fees. Accordingly, the Union contends that the Agency's exception "is premature." Opposition at 11.

B. Analysis and Conclusions

We reject the Agency's assertion. The Arbitrator did not award attorney fees. Rather, he stated that the Union could "apply" for attorney fees. Award at 10. Consequently, the Arbitrator was not required to make the findings necessary to support an award of attorney fees, and the Agency's exception does not demonstrate that the award is deficient. Compare U.S. Department of the Air Force, Aerospace Guidance and Metrology Center, Newark Air Force Base, Ohio and American Federation of Government Employees, Local 2221, 41 FLRA 550, 560 (1991) (portion of award ordering payment of attorney fees set aside in absence of fully articulated, reasoned decision setting forth the specific findings required by law). Accordingly, we will deny this exception.

IX. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. As the Authority's regulations do not provide for the filing of a response to an opposition or for additional filings, the supplemental submissions of the Agency and the Union have not been considered. See U.S. Department of the Army, Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900, 39 FLRA 402, 402 (1991).

2.