45:0497(41)AR - - AFGE Local 1840 and Air Force, Randolph AFB, San Antonio, TX - - 1992 FLRAdec AR - - v45 p497
[ v45 p497 ]
The decision of the Authority follows:
45 FLRA No. 41
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 Harold R. Ainsworth 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.1/ The Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance contesting the Agency's decision to suspend an employee for 7 days. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant was a cashier at the Agency. The Agency suspended the grievant for 7 days for a number of incidents.2/ "The most serious offense was making malicious statements about other employees resulting in disruption of the workplace and interference with the production of others." Award at 1. The suspension was also based on an incident in which the grievant allegedly was directed by the Agency not to sell tickets to customers and was subsequently observed taking money for tickets that he had sold.3/
The grievant denied the allegations against him and claimed that the allegations were made because other individuals "were upset because of his personal popularity." Id. at 2. The grievance was not resolved and was submitted to arbitration.
The Arbitrator found that the grievant had made the alleged statements and that the statements "were obviously of a disruptive nature." Id. The Arbitrator stated that "[t]his offense in itself was sufficient to justify the seven[-]day suspension." Id. The Arbitrator also found that the Air Force "has strict rules against selling tickets while working[,]" and that the grievant admitted that he was not telling the truth when he told his supervisor that he was not selling tickets. Id. Further, the Arbitrator found that there was no evidence to support the grievant's claim that he was "being persecuted because he is considered as being popular." Id. at 3. Accordingly, the Arbitrator denied the grievance.
III. Union's Exceptions
The Union asserts that the award is contrary to law and violates the parties' collective bargaining agreement. According to the Union, the evidence does not support the Arbitrator's findings that the grievant made the alleged malicious statements and that he received money for selling tickets. The Union also asserts that the Arbitrator failed to consider the Union's evidence and erred in considering certain statements that were not introduced as evidence. Additionally, the Union contends that the Arbitrator was prejudiced against the grievant.
IV. Analysis and Conclusions
We find that the Union fails to establish that the award is contrary to law. The Union has not cited a law with which the award allegedly conflicts and has not shown that the award violates any law. In our view, the Union's argument constitutes mere disagreement with the Arbitrator's findings and provides no basis for finding the award deficient. See U.S. Department of the Treasury, Customs Service, Houston, Texas and National Treasury Employees Union, 41 FLRA 485, 491-92 (1991).
We construe the Union's argument that the Arbitrator's award violates the parties' collective bargaining agreement as a contention that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this ground, a party must show 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 for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 44 FLRA 1202, 1204 (1992).
The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Union has not cited any provision of the parties' agreement and has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or unconnected to the wording and purpose of the agreement. Instead, we conclude that the exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such disagreement provides no basis for finding the award deficient. See, for example, id.
Further, the Union's assertion that the evidence does not support the Arbitrator's findings provides no basis for finding the award deficient. We conclude that this assertion constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his reasoning and conclusions and is an attempt to relitigate this case before the Authority. See, for example, U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 34 FLRA 315, 318 (1990).
We construe the Union's contention that the Arbitrator failed to consider the Union's evidence and erred in considering certain statements that were not introduced as evidence as a contention that the Arbitrator failed to conduct a fair hearing.
The Authority will find an award deficient when it is established that an arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 108-09 (1992). 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. Id. 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. Id. at 109. The liberal admission by arbitrators of testimony and evidence is a permissible practice. Id.
We conclude that the Union has not demonstrated that the Arbitrator denied it a fair hearing. In particular, the Union has not shown that the Arbitrator acted improperly so as to deny the Union a fundamentally fair hearing. See U.S. Department of the Air Force, Griffiss Air Force Base, New York and American Federation of Government Employees, Local 2612, 39 FLRA 471, 474 (1991). Rather, the Union's assertion constitutes mere disagreement with the Arbitrator's evaluation of the evidence. Such disagreement does not provide a basis for finding the award deficient. 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). Accordingly, we conclude that this assertion provides no basis for finding the award deficient.
Finally, we construe the Union's argument that the Arbitrator was prejudiced against the grievant as a claim that the award is deficient because the Arbitrator was biased. To demonstrate that an award is deficient on this basis, it must be shown that: (1) the award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator was guilty of misconduct by which the rights of a party were prejudiced. For example, National Labor Relations Board and National Labor Relations Board Union, 35 FLRA 421, 427 (1990). A mere allegation that an arbitrator is biased is not sufficient to establish that an award is deficient.
The Union has not demonstrated that the award was procured by improper means, that there was partiality or corruption on the Arbitrator's part, or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced. Accordingly, the Union's allegation that the Arbitrator was prejudiced against the grievant provides no basis for finding the award deficient. See, for example, id.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1/ The Union also requested a stay of the Arbitrator's award when it filed its exceptions to the award. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.
2/ Based on the award and the Union's exceptions, it appears that the length of the suspension was 7 days and that one reference in the award to a 5-day suspension was inadvertent.
3/ The Arbitrator did not identify the type of tickets.