46:0446(38)AR - - AFGE Local 2109 and VA, Temple, TX - - 1992 FLRAdec AR - - v46 p446
[ v46 p446 ]
The decision of the Authority follows:
46 FLRA No. 38
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
October 30, 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 John B. Abercrombie 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 did not file an opposition to the Union's exceptions.
The Arbitrator determined that the Agency had cause to take disciplinary action against the grievant, that an admonishment was appropriate disciplinary action under the circumstances, and that the action was not discriminatory, arbitrary or capricious. Accordingly, the Arbitrator denied the Union's grievance. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient, and we will deny the Union's exceptions.
II. Background and Arbitrator's Award
As a result of an incident involving the grievant and her supervisor on January 24, 1992, the grievant received an admonishment. A grievance filed by the Union was not resolved and was submitted to arbitration under the expedited arbitration provisions of the parties' collective bargaining agreement. The Arbitrator defined the issue before him as follows:
Whether the admonishment issued to [the grievant] on February 5, 1992, was for a just and sufficient cause as required by the provisions of Article 12, Investigations, Discipline and Adverse Action, Section 1 - General, of the Master Agreement.
Award at 1.
The Arbitrator concluded that the grievant had acted disrespectfully to her supervisor during the incident and that she had done so "partly in the presence of others." Id. at 2. The Arbitrator found that the grievant's conduct "did not meet common standards of acceptable work behavior" under Agency regulations. Id. at 3. In this regard, the Arbitrator noted that a similar incident had occurred on January 3, 1992, for which the grievant had received a verbal counseling under Article 10, Section 10 of the parties' agreement.
The Arbitrator further found that "[a]n admonishment is the minimum disciplinary action which can be taken against an employee for disrespectful conduct toward a supervisor . . . ." Id. The Arbitrator noted that the verbal counseling previously given to the grievant is not considered discipline under Article 10 of the parties' agreement and that Article 12, Section 3 of the agreement "accepts the concept of but does not require progressive discipline." Id. Finally, the Arbitrator concluded that the Agency had not been arbitrary, capricious, or discriminatory in its treatment of the grievant. Accordingly, the Arbitrator denied the grievance in both a bench decision and subsequently in a written award.
The Union argues that the award is deficient because the Arbitrator did not find that the Agency violated various provisions of the parties' agreement in giving the grievant an admonishment.(*/) The Union denies that the grievant ever received a verbal counseling and argues that the Agency did not have "just and sufficient cause as required by the provisions of Article 12 . . . of [the agreement]." Exceptions at 3. The Union claims that the Agency did not follow the contractual provisions for giving an admonishment, which the Union claims was "too severe" a punishment. Id. at 3. The Union also contends that the Arbitrator "was not interested" in the alleged contract violations and that he allowed the Agency's Chief of Personnel to introduce into evidence documents -- a counseling statement and a range of penalties -- that neither the Union representative nor the grievant had seen before. Id. at 2. The Union maintains that the Arbitrator improperly relied on those documents in reaching his decision.
IV. Analysis and Conclusions
A. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement
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. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992) (Oklahoma City ALC).
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 shown that the Arbitrator interpreted the agreement in a manner that was irrational, implausible or unconnected with the wording of the agreement. Indeed, in his award the Arbitrator states, as does the Union, that under Article 10 of the agreement, counseling is not considered to be discipline. Further, the Union has not demonstrated that the Arbitrator misinterpreted Article 12 of the agreement in concluding that the Agency had cause for giving the grievant an admonishment and that the Agency followed the appropriate procedure in doing so after having given the grievant a verbal counseling for a similar prior incident. Rather, we conclude that the Union's contention constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement and, as such, provides no basis for finding the award deficient. See, for example, Oklahoma City ALC.
B. The Hearing Was Fair
In essence, the Union argues that the Arbitrator failed to conduct a fair hearing by permitting the introduction into evidence of certain documents and by relying on those documents in reaching his decision. The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing. See U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103 (1991). 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, 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) (Defense Mapping Agency). Specifically, the liberal admission by arbitrators of testimony and evidence is a permissible practice. See id. (agency's contention that the arbitrator improperly considered a letter from grievant's physician and certain medical reports did not provide a basis for finding award deficient); National Border Patrol Council and National Immigration and Naturalization Service Council and United States Department of Justice, Immigration and Naturalization Service, 3 FLRA 401, 404 (1980) (union's contention that arbitrator erred in failing to exclude certain evidence did not establish the denial of fair hearing; arbitrator could take union's objections into account in determining what weight to give the disputed evidence).
The Union has not established that the Arbitrator's acceptance of the disputed documents prevented the Union from presenting its case in full to the Arbitrator or denied the Union a fair hearing. Accordingly, we conclude that this exception provides no basis for finding the award deficient. See Defense Mapping Agency, 44 FLRA at 109.
The Union's exceptions are denied.
Section 10 - Counseling
A. Verbal - When it is determined that verbal counseling is necessary, the counseling will be accomplished during a private interview with the concerned employee and the appropriate supervisor whenever possible and practical. At the conclusion of a one-on-one counseling session between a management official and an employee, if the employee is dissatisfied the employee is entitled, upon request, to a meeting between the management official, the employee, and his/her union representative to discuss the counseling. A meeting will be held as soon as possible if requested. If, after such a meeting, the employee is still dissatisfied and wishes to pursue a grievance, the employee may proceed to either Step 1 or to Step 2 of the grievance procedure. However, the provisions of this paragraph should not discourage an individual supervisor from exercising his/her discretion to include the employee's union representative during a counseling session. If there is to be more than one management official involved in a counseling session with an employee, the employee will be so notified in advance and the employee may have a union representative at the session.
. . . .
C. Counselings shall be reasonable, fair, and used constructively to encourage an employee's improvement in areas of conduct and performance. It should not be viewed as disciplinary action.
Section 3 - Progressive Discipline (Does not apply to probationary/trial or temporary employees)
Investigations, Discipline and Adverse Action
The parties agree to the concept of progressive discipline, designed primarily to correct and improve employee behavior, rather than to punish.
(If blank, the decision does not have footnotes.)
*/ Relevant contractual provisions are found in the Appendix to this decision.