47:0498(43)AR - - VA Medical Center, Lexington, KY and NAGE Local R5-184 - - 1993 FLRAdec AR - - v47 p498
[ v47 p498 ]
The decision of the Authority follows:
47 FLRA No. 43
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
April 28, 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 Michael A. Buchanan filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement when it disciplined the grievant for being absent without leave (AWOL). For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
When the grievant, an electrician, was given less than 3 days' notice that a schedule change would require him to work on the following Sunday, he advised his supervisor that he would be unable to work because of his prior "religious obligations as a minister" and because there was insufficient time for him to find a substitute minister. Award at 12. Subsequently, the grievant did not report to work on Sunday and the Agency charged him with 8 hours' AWOL. Thereafter, the Agency reprimanded the grievant for insubordination and for being in a nonapproved leave status.
A grievance was filed over the letter of reprimand. When the grievance was not resolved, it was submitted to arbitration. The parties stipulated the issues as follows:
 [W]as [the] Grievant properly disciplined for being AWOL on Sunday, November 17, 1991?
 [W]as [the] Grievant properly disciplined for being insubordinate relative to his absence on such day?
With regard to the answers to the preceding queries, what is the appropriate remedy?
Award at 12.
Initially, the Arbitrator stated that the grievance "[was] not a religious accommodation case in the sense of an employee refusing to work on a given day because of a 'religious conviction' which precludes such work." Id. In this regard, the Arbitrator noted the parties' stipulation that the grievant did not "'have a religious objection to performing work on Sunday'" and that the grievant objected only to working on the particular Sunday in question. Id.
Citing Article 26, sections 12 and 14 of the parties' supplemental agreement(1), the Arbitrator found that the Agency gave the grievant "materially deficient notice" of the disputed schedule change. Id. at 23. The Arbitrator also found that the Agency had adequate time before the Sunday at issue to accomplish the work scheduled for the grievant and had, in this regard, "'created its own emergency.'" Id. at 22. Furthermore, the Arbitrator found that there was "insufficient evidence to support the Employer's argument that 'the agency would be handicapped in carrying out its mission' or that 'operational costs would be substantially increased' as set forth in Section 18 of Article 26 . . . ." Id. (2)
The Arbitrator concluded that the discipline was "not just or fair based on the . . . facts and circumstances surrounding the grievance . . . ." Id. at 23. The Arbitrator stated that the insubordination charge was also "without justification." Id. Accordingly, the Arbitrator sustained the grievance and directed the Agency to rescind the reprimand.
The Agency asserts that the award violates management's right to assign work under section 7106(a) of the Statute. Specifically, the Agency claims that the Arbitrator substituted his judgment for the Agency's when he determined that the grievant "was not obligated to report to work on the Sunday in question." Exceptions at 14.
The Agency also argues that the award violates 5 C.F.R. &§ 610.121(b)(2), which requires agencies to modify work schedules to avoid the payment of overtime.(3) The Agency maintains that it modified the grievant's work schedule in compliance with this regulation and with Article 26 of the parties' supplemental agreement.
Next, the Agency claims that the Arbitrator "exceeded his authority by expanding his decision beyond the issues presented." Id. at 5. In support of this claim, the Agency argues that the Arbitrator considered issues which were beyond the scope of, and not "remotely related" to, the grievance. Id. at 9. Such issues, according to the Agency, concerned mandatory overtime and excused absences.
Finally, the Agency argues generally that the Arbitrator "ignored significant testimony regarding the appellant's refusal to report to work and dismissed the insubordination charge with one sentence in his award." Id.
The Union claims that the Arbitrator did not exceed his authority. The Union also maintains that the award does not conflict with applicable regulations and does not interfere with management's right to assign work. In the Union's view, the award does not "force the agency to change the way it assigns work." Opposition at 7.
V. Analysis and Conclusions
A. The Award Does Not Interfere with Management's Right to Assign Work
We reject the Agency's argument that the award conflicts with its right to assign work. The award does not direct the Agency to change the work schedules of any of its employees. In fact, the award does not direct the Agency to assign work and schedule employees in any particular way. Rather, the Arbitrator discussed the Agency's work schedule and the availability of other employees as a part of his conclusions that the grievant's discipline was not for just cause. Accordingly, the award does not conflict with the Agency's right to assign work. See, for example, U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, Maryland and National Association of Agriculture Employees, 38 FLRA 1291, 1295 (1991) (Plant Protection).
In our view, the Agency's exception mischaracterizes the award. Because the Arbitrator did not require the Agency to take, or refrain from taking, any particular actions with regard to the assignment of work, the award does not interfere with management's right under section 7106 of the Statute. Consequently, this exception does not provide a basis for finding the award deficient. See U.S. Department of the Treasury, Internal Revenue Service, Southeast Region, Atlanta, Georgia and National Treasury Employees Union, Chapter 6, 46 FLRA 572, 576 (1992); Plant Protection, 38 FLRA at 1295.
B. The Award Does Not Conflict with 5 C.F.R. &§ 610.121(b)(2)
We also reject the Agency's claim that the award violates 5 C.F.R. &§ 610.121(b)(2). The Arbitrator did not require the Agency to change the grievant's work schedule and did not make any determinations regarding the Agency's right to have rescheduled the grievant's workweek. The Agency has not demonstrated that the award in any way interferes with the Agency's right to determine the schedule of its employees under 5 C.F.R. &§ 610.121(b)(2). Accordingly, this exception provides no basis for finding the award deficient.
C. The Arbitrator Did Not Exceed His Authority
An arbitrator's award will be found deficient, as in excess of an arbitrator's authority, when, among other things, the arbitrator resolves an issue that has not been submitted by the parties to the arbitrator. See, for example, General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123, 1128 (1990).
It is clear that the parties agreed at the arbitration hearing that the issues to be resolved by the Arbitrator concerned only the grievant's discipline. It is also clear that the Arbitrator's award encompasses only the discipline and directs the Agency "to remove the reprimand from [the] Grievant's personnel folder . . . ." Award at 24.
As the Arbitrator's award encompasses only the disciplinary issue, and is directly responsive to the issues as stipulated, this exception provides no basis for setting aside or modifying the award. Instead, the exception constitutes mere disagreement with the Arbitrator's reasoning in reaching his conclusion on the issue before him and does not demonstrate that the award is deficient. U.S. Department of Justice, Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Local 171, 38 FLRA 22, 26-27 (1990).
D. The Arbitrator Conducted a Fair Hearing
We construe the Agency's claim that the Arbitrator ignored significant testimony as a claim 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, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 105-07 (1991). However, arbitrators have considerable latitude in the conduct of the hearing and the fact that an arbitrator conducts 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 the Army, Army Corps of Engineers, Mobile, Alabama and National Federation of Federal Employees, Local 561, 46 FLRA 968, 972 (1992).
The Agency claims that the Arbitrator "ignored significant testimony regarding the [grievant's] refusal to report to work and dismissed the insubordination charge with one sentence in his award." Exceptions at 9. The Agency, however, has not established that the Arbitrator refused to hear pertinent and material evidence or otherwise failed to conduct a fair hearing. We find that the Agency's contentions constitute mere disagreement with the Arbitrator's evaluation of the evidence and testimony presented at the hearing, and provide no basis for finding the award deficient. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1042 (1991).
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 26, states in pertinent part:
Section 12: Tours of duty shall be posted at least fourteen (14) calendar days in advance and shall cover, at a minimum, a two (2) week period. . . . Normally, changes in the duty schedule shall be posted in the work area no later than one week prior to the beginning of the administrative work week unless the agency would otherwise be handicapped in carrying out its mission or if operational costs would be substantially increased. (Emphasis omitted).
. . . .
Section 14: Days off will be scheduled on consecutive days whenever possible. The Medical Center recognizes the desirability of scheduling employees to work for no more than six (6) consecutive days . . . . Circumstances precluding six day scheduling include, but may not be limited to: . . . emergencies.
Award at 18-19.
2. Article 26 section 18 of the parties' Supplemental Agreement provides:
Tours of duty shall not be established or changed solely for the purpose of avoiding the payment of holiday, premium, irregular or occasional overtime pay unless the agency would be handicapped in carrying out its mission or if operational costs would be substantially increased, in accordance with 5 CFR 610.121(a).
Award at 18.
3. 5 C.F.R. &§ 610.121(b)(2) provides:
When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee