46:1450(139)AR - - AFGE Local 1988 and VA, Brooklyn Medical Center - - 1993 FLRAdec AR - - v46 p1450



[ v46 p1450 ]
46:1450(139)AR
The decision of the Authority follows:


46 FLRA No. 139

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1988

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

BROOKLYN MEDICAL CENTER

(Agency)

0-AR-2325

_____

DECISION

February 18, 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 Ralph S. Berger 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 grievance concerned a reprimand issued to the grievant for responding to a supervisor in a disrespectful manner. For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant is employed as a sewing machine operator at the Agency's St. Albans facility. On April 12, 1991, the grievant purchased a radio cassette player at the facility's canteen. Prior to the purchase, the grievant was assisted by Supervisor Castiglia, the Acting Chief of the Veterans Administration Canteen Service at the St. Albans facility. Castiglia had some difficulty demonstrating the proper operation of the cassette player. Words were exchanged regarding Castiglia's ability to assist the grievant, although Castiglia and the grievant differed in their versions of what was said as well as what time the purchase was made. In any event, after the grievant purchased the cassette player, she left the canteen. Castiglia followed the grievant down the corridor and asked the grievant for the name of her supervisor. Once again, there is some dispute as to precisely what was said by Castiglia and the grievant. Castiglia claimed that the grievant screamed and yelled, among other things. The grievant claimed that Castiglia shouted and shook her finger in the grievant's face. It is clear, however, that the grievant refused to name her supervisor. Both Castiglia and the grievant reported the incident to different Agency officials. Subsequently, on May 10, 1991, the grievant was issued a reprimand based on disrespectful conduct toward Castiglia.

The parties were unable to resolve the grievance and stipulated the following issue for arbitration: "Was the reprimand given to [the grievant] on May 10, 1991 for just and sufficient cause? If not, what shall be the remedy?" Id. at 2. The Arbitrator noted initially that there were serious credibility questions raised by conflicting testimony but that it was unnecessary to resolve all the disputed testimony. Rather, he found that there were certain "uncontroverted facts" emanating from the grievant's testimony that established that the Agency met its burden of proof in this case. Id. at 8.

First, the Arbitrator noted that the question of whether the incident occurred at 10:00 a.m., as Castiglia claimed, or at 12:30 p.m., as the grievant claimed, was irrelevant. According to the Arbitrator, the crucial point was that the confrontation occurred "during working hours and at the work site." Id. at 9. For this reason, he regarded any arguments concerning "off-duty misconduct" as misplaced. Id. Second, the Arbitrator noted certain admissions made by the grievant. Specifically, he noted the grievant's acknowledgment that when asked a direct question by a supervisor, it was her obligation to respond. He also noted that in this instance, the grievant understood that a supervisor had given her a direct order to name her own supervisor and that she had refused to do so. Based on these statements, the Arbitrator concluded that "one must find that [the grievant] responded to a supervisor in an insubordinate, disrespectful manner." Id. The Arbitrator also noted that the grievant should have followed the maxim "obey now, grieve later[,]" if she felt that she had been mistreated by Castiglia. Id. at 9. However, because the grievant failed to follow a direct order, she placed herself "at peril." Id.

In addressing whether an appropriate penalty had been imposed, the Arbitrator noted that the grievant had recently received an admonishment based, in part, on disrespectful behavior toward a supervisor. Therefore, the Arbitrator found that a reprimand was an appropriate progressive disciplinary measure. Accordingly, the Arbitrator denied the grievance on the basis that the reprimand was for just and sufficient cause.

III. Positions of the Parties

A. Union's Exceptions

The Union excepts to the award on three grounds: (1) the Arbitrator misinterpreted Federal Personnel Manual chapter (FPM) 752; (2) the Arbitrator misapplied Article 10, section 6 of the parties' agreement;(*) and (3) the Arbitrator misinterpreted certain evidence and failed to consider all the evidence presented by the Union.

In support of its exceptions, the Union asserts that the Arbitrator did not determine what evidence was credible and thereby failed to establish that the Agency proved the charge against the grievant by a preponderance of the evidence. According to the Union, the Arbitrator particularly erred in failing to determine whether the incident occurred at 10 a.m. or 12:30 p.m. The Union argues that the evidence establishes that, in fact, the incident occurred between 12-12:30 p.m. while the grievant was on a non-paid lunch period. The Union claims that under Article 10, section 6 of the parties' agreement, management would have to prove a nexus between off-duty misconduct and an employee's "on[-]duty position." Exceptions at 2.

The Union also states that the Arbitrator went "far beyond" the basis of the reprimand. According to the Union, there was no evidence that the grievant was charged with insubordination. Finally, the Union maintains that the Arbitrator erred in applying the maxim "obey now, grieve later." Id. The Union states that the grievant was off-duty at the time of the events giving rise to the reprimand, that she was not dealing with anyone who supervised her work and, therefore, that she was entitled to engage in "self[-]help." Id.

B. Agency's Opposition

The Agency contends that the Union's exceptions are without basis. More specifically, the Agency asserts that FPM chapter 752 does not apply in this case and that the Arbitrator correctly applied Article 10, section 6 of the parties' agreement. The Agency also disputes the Union's contentions regarding the Arbitrator's evidentiary findings and his failure to apply a particular standard of proof.

IV. Analysis and Conclusions

We will find an award deficient if it is contrary to law, rule, or regulation. For the following reasons, we conclude that the Union fails to establish that the award is deficient.

We reject the Union's exception that the Arbitrator misinterpreted FPM chapter 752. That chapter contains guidance concerning the requirements governing suspensions, removals, reductions in grade or pay, or furloughs of 30 days or less. The issue in the case involved a reprimand that was issued to the grievant. As such, it does not implicate the provisions of FPM chapter 752. Compare Federal Bureau of Prisons, Federal Correctional Institution for Women, Alderson, West Virginia and American Federation of Government Employees, Local 1494, 41 FLRA 311, 314 (1991), in which a union excepted to an award upholding a suspension on the basis that the award was contrary to provisions of FPM chapter 752.

We also reject the Union's exception that the Arbitrator misinterpreted Article 10, section 6 of the parties' agreement. We view such an argument 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, American Federation of Government Employees, Local 2109 and U.S. Department of Veterans Affairs, Temple, Texas, 46 FLRA 446, 448 (1992)(Department of Veterans Affairs).

The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. In assessing the Union's arguments regarding the grievant's claimed off-duty conduct, the Arbitrator found that such arguments were misplaced in view of the fact that the confrontation between Castiglia and the grievant occurred during working hours and at the work site. In making his finding, the Arbitrator essentially determined that either Article 10, section 6 did not apply because the confrontation occurred at the workplace and during general working hours, or that it did apply and the standard of nexus was satisfied. The Union has not shown that the Arbitrator's interpretation or application of the agreement was irrational, implausible, or unconnected with the wording of the agreement. Instead, the Union's argument constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. The argument provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 45 FLRA 797, 799-800 (1992).

We also reject the Union's contentions that the Arbitrator misinterpreted certain evidence and failed to consider all the evidence presented by the Union. We construe the Union's argument that the Arbitrator failed to consider all the 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 that provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. Id. at 109.

We conclude that the Union has not established that the Arbitrator acted improperly so as to deny the Union a fundamentally fair hearing. See, for example, Department of Veterans Affairs, 46 FLRA at 449. Instead, the Union's contention that the Arbitrator failed to consider certain evidence constitutes mere disagreement with the Arbitrator's evaluation of the evidence and the weight to be accorded such evidence. Such disagreement provides 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, AFL-CIO, Local 3610, 41 FLRA 504, 510 (1991); Federal Employees Metal Trades Council and U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California, 40 FLRA 1012, 1015 (1991). We reach the same conclusion with respect to the Union's assertion that the Arbitrator misinterpreted certain evidence. Such an exception constitutes mere disagreement with the Arbitrator's evaluation of evidence and does not provide a basis for finding the award deficient.

Finally, we find no merit to the Union's arguments that: (1) the Arbitrator failed to find that the Agency's charge against the grievant was supported by a preponderance of the evidence; and (2) the Arbitrator's statements regarding the basis of the charge and the grievant's obligation to "obey n