46:1191(110)AR - - AFGE Local 1840 and Air Force, Randolph AFB, San Antonio, TX - - 1993 FLRAdec AR - - v46 p1191
[ v46 p1191 ]
The decision of the Authority follows:
46 FLRA No. 110
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
RANDOLPH AIR FORCE BASE
SAN ANTONIO, TEXAS
January 15, 1993
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 J.D. Dunn 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 filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that a supervisor used abusive and profane language to a Union official and, thereby, violated law and the parties' collective bargaining agreement. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a Union official, filed a grievance claiming that an Agency supervisor used abusive and profane language when he refused to accept certain documents from the grievant. When the grievance was not resolved, it was submitted to Arbitration. As the parties were unable to agree on a joint statement of issues, the Arbitrator determined that the issue before him was the "disposition of the grievance." Award at 3.
The Arbitrator rejected the Union's claims that the supervisor's conduct violated law, including section 7116 of the Statute, Articles 1, 2, 3, 5, 12, 25 and 33 of the parties' agreement, and constituted a prohibited personnel practice.
The Arbitrator stated that "by no stretch of the imagination could one say the Union's evidence was sufficient to show that the Agency violated" Articles 1, 2, 5, 12, or 25 of the parties' agreement.(2) Award at 6. The Arbitrator also concluded that the incident which "gave rise to the grievance could be considered, if proven," to be a violation of Article 3 of the agreement.(3) The Arbitrator found, in this connection, that of the three persons who were "direct witnesses" to the alleged abusive language, two disputed the grievant's testimony. Id. at 9. The Arbitrator also found that, even if the supervisor made the alleged abusive and profane statement, the Union "did not present evidence sufficient to establish" that such statement was uttered to discourage membership in the Union, within the meaning of Article 3 of the parties' agreement. Id. at 10. Thus, the Arbitrator concluded that the Union failed to demonstrate that the Agency violated the agreement.
The Arbitrator also concluded that the Union failed to establish that the Agency violated the Statute or committed a prohibited personnel practice.(4) According to the Arbitrator, the Union did "not [meet] its burden of proof." Id. The Arbitrator concluded as follows:
The Union did not present evidence to show by a preponderance of the evidence that [the Agency] violated either the Negotiated Agreement or statutory law. For this reason, the grievance is denied.
III. Positions of the Parties
The Union argues that the award conflicts with law and Agency regulations and does not draw its essence from the parties' agreement. In support of these contentions, the Union claims that the supervisor used profane and abusive language to the grievant. According to the Union, as such conduct violates Articles 3 and 33,(5) among others, of the parties' agreement and section 7116 of the Statute, the Arbitrator failed to apply these provisions of the agreement and the law correctly.
The Union asserts that, despite the Arbitrator's findings to the contrary, the Union established the alleged violations. The Union argues, in this regard, that one of the agency witnesses was discredited by the Union during the arbitration hearing and, as such, the testimony of that witness should have had no bearing on the outcome of the grievance. According to the Union, the grievant had no reason to fabricate the incident which gave rise to the grievance and the Arbitrator failed to "understand . . . [the] charge against [the Agency supervisor]." Exceptions at 2.
The Agency disputes the Union's claims that the award is contrary to the parties' agreement, law, rule, and regulation. The Agency asserts that the Union is simply arguing that the Arbitrator did not properly evaluate the evidence presented at the hearing.
IV. Analysis and Conclusions
A. The Award Does Not Fail to Draw Its Essence From the Parties' Agreement
To demonstrate that an award fails to draw its essence from the parties' collective bargaining agreement, 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 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, Randolph AFB, 45 FLRA at 499.
The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests.(6) The Arbitrator determined that, even if the alleged abusive and profane language was used, the Union failed to demonstrate that such use violated the parties' agreement. We have no basis on which to conclude, in this connection, that the Arbitrator's interpretation of Articles 3 and 33 of the agreement is irrational, unfounded, implausible or in manifest disregard of the agreement.
In our view, the Union's arguments that the supervisor's conduct violated the parties' agreement constitute mere disagreement with the Arbitrator's evaluation of the evidence and his conclusions. Such disagreement provides no basis for finding the award deficient. For example, Randolph AFB, 45 FLRA at 499.
B. The Arbitrator Conducted a Fair Hearing
We construe the Union's assertion that the testimony of one of the Agency's witnesses should not have been considered by the Arbitrator as a contention that the Arbitrator failed to conduct a fair hearing. The Authority will find an arbitration award deficient if 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 the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94 (1991). 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 our view, the Union has not demonstrated that it was denied a fair hearing in this case. Rather, the Union's assertion constitutes mere disagreement with the Arbitrator's evaluation of the evidence and is an attempt to relitigate the grievance before the Authority. See, for example, American Federation of Government Employees, Local 2610 and Veterans Administration Medical and Regional Office Center, Togus, Maine, 30 FLRA 1153 (1988)(exceptions contending, among other things, that the arbitrator admitted and considered certain evidence and testimony provided no basis for finding the award deficient).
C. The Award Is Not Contrary to Law or Regulation
We reject the Union's contention that the award violates law and regulation.
The Arbitrator expressly concluded that the Union did not present sufficient evidence to establish that the Agency violated section 7116 of the Statute or committed a prohibited personnel practice. The Union's mere assertion to the contrary in its exceptions does not establish that the Arbitrator erred or that the award is deficient as conflicting with law or regulation. As such, this exception provides no basis for finding the award deficient. For example, Randolph AFB, 45 FLRA at 499.
Finally, we construe the Union's claims that the award "does not draw its essen[c]e from" Air Force Regulation 40-750 as a contention that the award is contrary to an Agency regulation. Exceptions at 1. However, the record does not contain, and the Union did not provide us with, a copy of that regulation or the portions thereof with which the award allegedly conflicts. Accordingly, the Union has not established that the award conflicts with this regulation.
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. 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. See American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, n.1 (1992) (Randolph AFB).
2. The Arbitrator did not include in the award, and the record does not otherwise disclose, the wording of these articles.
3. Article 3 provides, in pertinent part:
The Employer agrees to ensure that employees in the unit are informed of these rights and that no interference, restraint, coercion, or discrimination is practiced by the Employer's representative to encourage or discourage membership in a labor organization.
Award at 6 (emphasis omitted).
4. The Arbitrator did not identify the alleged prohibited personnel practice, nor is it identified in the Union's exceptions.
5. Article 33 provides, in pertinent part:
The parties agree to attempt to resolve unfair labor practice-type disputes informally . . . . The Party with a complaint will describe the complaint fully in writing . . . . The Party receiving the written complaint will [be] given 10 work days to resolve the complaint. The Parties agree to meet with each other as often as necessary . . . for the purpose of settling the dispute . . . .
Award at 4.
6. As the wording of other articles of the parties' agreement is not in the record before us, we will consider only Articles 3