47:0003(1)AR - - DOD Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, AFT - - 1993 FLRAdec AR - - v47 p3

[ v47 p3 ]
47:0003(1)AR
The decision of the Authority follows:


47 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

MEDITERRANEAN REGION

(Agency)

and

OVERSEAS FEDERATION OF TEACHERS

AFT, AFL-CIO

(Union)

0-AR-2306

_____

DECISION

March 2, 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 Susan T. Mackenzie 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 denied a grievance contesting the reduction-in-force (RIF) of the position occupied by the grievant. 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 hired as a temporary part-time English teacher at the Aviano American High School in Aviano, Italy for the school year 1989-90. In October 1989, the grievant's employment status was changed from temporary to permanent by the Civilian Personnel Office. No notice of the change was provided to the principal of the Aviano School at that time.

At the beginning of school year 1990-91, the grievant was reappointed to the Aviano School as a permanent part-time English teacher. At the end of that school year, the Agency abolished the grievant's position and separated her from employment, by means of a RIF, effective June 14, 1991. The principal of the Aviano School who conducted the RIF replaced the grievant's position with a newly created permanent full-time English/Social Studies/Speech position.

Further, as relevant here, two other teacher reassignments occurred at the end of school year 1990-91. A permanent full-time teaching position in Comiso, Italy was abolished and the teacher occupying that position was scheduled for separation by RIF. In seeking to prevent the separation of that teacher, the Agency reassigned him to a vacant position in Sigonello, Italy. The position in Sigonello became vacant when the Agency reassigned a teacher from that location to the newly created permanent full-time English/Social Studies/Speech position at the Aviano School. The record indicates that the teacher from Sigonello was reassigned as "a compassionate transfer," although the reasons for the transfer were not specified. Award at 14.

The Union filed a grievance protesting management's treatment of the grievant and alleging that the Agency did not consider reasonable alternatives to the RIF in order to minimize its impact. The grievance also alleged that management failed to provide the grievant with priority consideration for vacancies that occurred in the region for which the grievant was qualified.

The grievance was not resolved and was submitted to arbitration. The parties stipulated the following issue for resolution by the Arbitrator:

Did management violate the collective bargaining Agreement, applicable rules and law when they conducted the RIF of the half-time English position occupied by [the] grievant[?]

Id. at 1.

Before the Arbitrator, the Union argued that the RIF was not conducted in accordance with the parties' agreement and applicable law and regulations. Rather, the Union claimed that the RIF was based on improper motives and personal animus toward the grievant and her family harbored by the principal of the Aviano School. The Union also contended that the RIF was "conducted in a manner that wasted [G]overnment funds," citing the reassignment of the teachers in Comiso and Sigonello. Id. at 8. The Union asserted that the Agency failed to consider alternatives to the RIF of the grievant's position and failed to give the grievant priority consideration for other positions. The Union also argued that the RIF was a "constructive removal" of the grievant and a violation of the Federal Employees Part-Time Career Employment Act of 1978. Id.

The Agency disputed the Union's contentions. The Agency maintained that it considered reasonable alternatives to the RIF including, among other things, considering whether the grievant was suitable for the newly created full-time position at the Aviano School. The Agency also maintained that the RIF of the position occupied by the grievant was not based on improper motives or personal animus on the part of the principal. The Agency added that the reassignment of the two employees that occurred elsewhere in the Agency was in the interest of the Agency as well as the Aviano School.

The Arbitrator found that the record failed to establish that the Agency violated its obligations under the parties' agreement or applicable law, rules, and regulations. In reaching this result, the Arbitrator noted that Article 29 of the parties' agreement, which references the RIF procedures contained in the Federal Personnel Manual (FPM) and the Code of Federal Regulations, and "DSM Manual 5271.1, Chapter 21.d" require that the Agency consider reasonable alternatives to RIF actions and/or to conduct RIF actions in such a manner so as to minimize the impact on employees. Id. at 12.

As relevant here, the Arbitrator found that the Agency maintains separate competitive levels for full-time and part-time positions. Noting that the grievant occupied a part-time position, the Arbitrator found support for the Agency's assertion that there were no other positions available in the grievant's competitive level into which she could have been placed. The Arbitrator also found, based on the parties' stipulation, that the grievant had no "bumping or retreat rights" to other competitive levels. Id.

Additionally, the Arbitrator found that the Agency considered other reasonable alternatives before effecting the RIF. The Arbitrator was not persuaded by the Union's contention that as a reasonable alternative, the Agency should have placed the grievant into the newly created full-time English/Social Studies/Speech position at the Aviano School. The Arbitrator found, instead, that the Agency's decision to fill the position with the teacher from Sigonello was not unreasonable. The Arbitrator also determined that the reassignments affecting the teachers in Sigonello and Comiso were "commensurate with the Agency's obligation in RIF circumstances to reduce the number of adversely affected employees." Id. at 15. The Arbitrator noted, in this connection, that the interests of both the Agency and the Aviano School were served by the reassignment of the two teachers. The Arbitrator also found that the Agency was precluded from reassigning the teacher from Comiso to other locations for a variety of reasons, including the existence of "military-activity" at one of the locations. Id. at 16.

The Arbitrator also rejected the Union's contention that the RIF of the grievant's position was based on improper motives or personal animus harbored by the principal toward the grievant and her family. In reviewing the record evidence, the Arbitrator found that any displeasure the principal may have had regarding the conversion of the grievant from temporary to permanent status, based on the lack of notice to the principal, "was directed at the Civilian Personnel Office rather than [the] grievant." Id. at 15. Furthermore, the Arbitrator found that evidence regarding the principal's conduct toward the grievant's son did not establish that the principal harbored personal animus toward the grievant.

In sum, the Arbitrator concluded that the Agency did not violate the parties' agreement, applicable rules, or law in this case. Accordingly, the Arbitrator denied the grievance.

Subsequent to the arbitration hearing and prior to the issuance of the award, the Union filed a motion with the Arbitrator to reopen the record. The Union requested the opportunity to introduce an affidavit from a secretary to the principal of the Aviano school to support the Union's view that the RIF was based on an improper motive. The Union stated that it had attempted unsuccessfully to obtain the secretary's testimony prior to the arbitration hearing. The Union also submitted a copy of the affidavit for the Arbitrator's consideration. In a letter to the Arbitrator, the Agency opposed the Union's motion.

The Arbitrator denied the motion to reopen the record. The Arbitrator found that the secretary's affidavit arguably was available at the time of the hearing and that there was an "insufficient demonstration that its introduction would materially affect the outcome of the case." Attachment 6 to Exceptions at 2. However, based on arguments raised by the parties, the Arbitrator requested the Agency to provide her with additional information concerning the availability of assignments at several locations.

III. Exceptions

The Union claims that the award is deficient because the Arbitrator denied the Union a fair hearing. The Union also asserts that the award is based on a nonfact and is contrary to an Agency regulation.

According to the Union, the Arbitrator denied it a fair hearing by improperly denying its motion to reopen the record in order to submit "crucial evidence." Exceptions at 4. According to the Union, consideration of the secretary's affidavit "would have altered the Arbitrator's decision." Id. The Union also contends that the Arbitrator improperly "accepted and endorsed" the Agency's newly-made assertion that military activity precluded the reassignment of the teacher from Comiso to a position in Bahrain. Id. at 6. The Union claims that Bahrain was not part of the Desert Storm war zone and that if the Agency had reassigned the teacher from Comiso to Bahrain, the RIF of the grievant's position would have been unnecessary. The Union adds that "[t]he error in accepting the new evidence denied [the grievant] and the Union a fair hearing." Id.

Next, the Union contends that the award is inconsistent with provisions contained in DSM Manual 5271.1. The Union argues, in this connection, that the reassignments involving the teachers in Sigonello and Comiso did not conform to the Activity's regulation "which emphasizes minimizing impact on the workforce . . . ." Exceptions at 8. The Union adds that if the Agency had simply reassigned the teacher from Comiso to Bahrain, the reassignment would have satisfied the Agency's regulation and obviated the need for the RIF of the grievant's position. According to the Union, the award is contrary to the cited regulation because the Arbitrator approved the Agency's action in "making two reassignments instead of one . . . ." Id. at 9.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Deny the Union a Fair Hearing

We reject the Union's contention that the Arbitrator failed to provide it with 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, 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). However, an arbitrator has considerable latitude in the conduct of a hearing, and the fact that the 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 Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1178 (1990) (Authority found no denial of a fair hearing despite union's contention that arbitrator had improperly excluded witness's testimony). 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 Defense Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 869 (1990).

The Union essentially argues that it was denied a fair hearing for two reasons: (1) the Arbitrator improperly denied the Union's motion to reopen the record; and (2) the Arbitrator erroneously accepted new evidence submitted by the Agency. We find no merit to either of the Union's contentions.

First, the Arbitrator denied the motion to reopen the record on the grounds that the secretary's affidavit arguably was available at the time of the arbitration hearing and, additionally, because there was an insufficient demonstration that the affidavit's introduction would materially affect the outcome of the case. The Union has not shown that the Arbitrator improperly refused to allow the affidavit into evidence or that such refusal affected the fairness of the arbitration proceeding. In our view, the Union's argument constitutes mere disagreement with the Arbitrator's evaluation of the evidence. As such, this exception provides no basis for finding the award deficient. For example, Defense Mapping Agency, 44 FLRA at 108-09.

Second, the Arbitrator considered arguments made by the Agency concerning the availability of locations to which the teacher from Comiso could have been reassigned. As we stated in Defense Mapping Agency, the liberal admission by arbitrators of testimony and evidence is a permissible practice. 44 FLRA at 109. The Arbitrator's consideration of the evidence submitted by the Agency to assess whether the Agency had examined reasonable alternatives to the RIF of the grievant's position was entirely appropriate. In addition, the Union has presented no basis on which to conclude that it was prevented from presenting its case in full or that it was denied a fair hearing in any manner. Thus, the Union's exception provides no basis for finding the award deficient.

B. The Award Is Not Based on a Nonfact

We reject the Union's assertion that the award is based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 44 FLRA 1080, 1083 (1992).

The Arbitrator concluded, based on her evaluation of the evidence, that there was no basis on which to sustain the grievance. The Union disputes certain arbitral findings, particularly those regarding the absence of animus or improper motive, but has