47:0962(92)AR - - AFGE Local 2128 and DOD, Defense Logistics Agency, Defense Contract Management District South - - 1993 FLRAdec AR - - v47 p962
[ v47 p962 ]
The decision of the Authority follows:
47 FLRA No. 92
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE CONTRACT MANAGEMENT DISTRICT SOUTH
June 23, 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 William L. McKee 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 Arbitrator denied a grievance contesting the grievant's 3-day suspension. For the following reasons, we conclude that there is no basis on which to find the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant is employed as a quality assurance specialist. The events leading to his 3-day suspension occurred after the Federal Government contracted with a manufacturing firm for the production of indicator wires for use in military aircraft. The indicator wire is a mechanism used in aircraft altimeters to warn pilots of possible problems. In order to properly warn the pilot, the wire must break when there is a change in altitude. Recipients of the wire manufactured under this contract found that the wires did not pass a bend/break test and contained several other production flaws. Consequently, the shipments were returned to the manufacturer for correction, resulting in delays to military users. The grievant was the quality assurance specialist assigned to this contract. After the problem arose, the Agency learned that the grievant had not conducted independent bend/break tests of the wires and had not validated the tests required of the manufacturer. As a result, the grievant was given a 3-day suspension.
The Union filed a grievance claiming that the suspension was given without just cause and further claiming that the grievant was subjected to disparate and discriminatory treatment by the Agency. The grievance was not resolved and was submitted to arbitration. The issue before the Arbitrator was:
Did the March 20, 1992, decision to suspend [the grievant] for three days and the associated treatment of the [g]rievant violate any law, rule or regulation, or the Union contract? If so, what is the appropriate remedy?
Award at 1.
The Arbitrator found that the 3-day suspension of the grievant was for just cause under the terms of the parties' agreement and denied the grievance.(*) In reaching that result, the Arbitrator found that "[the grievant] was responsible for ensuring that the necessary tests were conducted before shipment of the parts to the Air Force." Id. at 6. The Arbitrator based that conclusion on an analysis of "(1) the procurement contract and its technical drawings, (2) requirements listed in the Agency's In-Plant Quality Evaluation . . . manual and Quality Assurance regulations, and (3) . . . testimony regarding the specific function of the indicator wire." Id. The Arbitrator specifically rejected the Union's contentions that the contract did not specify that the indicator wires were regarded as critical items; that a faulty indicator wire cannot cause an aircraft to crash; and that the grievant was not provided with sufficient time and resources to do his job. The Arbitrator also found no support for the Union's implicit argument that Agency officials were unqualified to address or oversee matters pertaining to aircraft parts procurement actions. Instead, the Arbitrator found that the preponderance of the evidence supported the Agency's determination to suspend the grievant.
With respect to the Union's claim that the grievant was the subject of disparate and discriminatory treatment, the Arbitrator concluded that "insufficient evidence came forward at the hearing to establish such a proof." Id. at 10. The Arbitrator stated that "[w]hile there obviously is great disunity of workers in this office, nothing specifically demonstrates a pattern or practice of disparate treatment or discrimination against the [g]rievant or the Union." Id. Accordingly, the Arbitrator denied the grievance in full.
III. Union's Exceptions
The Union contends that the Arbitrator failed to evaluate the evidence properly and was biased against the Union. The Union also contends that the award is not based on the evidence submitted and that it is inconsistent with the "Douglas Factors." Exceptions at 1. Finally, the Union asserts that the award is contrary to law, rule, and regulation.
With regard to the Union's argument that the Arbitrator failed to evaluate the evidence properly, the Union cites various examples of where, in its view, the Arbitrator erred. For example, the Union asserts that the Arbitrator failed to give any weight to the testimony of the Union's experts or to a management witness who testified that "he [did] not believe that this action was warranted." Id. The Union also argues that the Arbitrator disregarded the testimony of the only witness with personal knowledge of the events that transpired--namely, the grievant, whose testimony reflected that the indicator wires were inspected "in accordance with standing office procedures." Id. at 3. Additionally, the Union maintains that the Arbitrator ignored the fact that at the time this incident occurred, the Agency manual upon which the award is based was not in effect.
The Union also contends that the Arbitrator's bias adversely affected his decision. In support of this assertion, the Union cites statements in the award such as that the grievant "managed to alienate most of his fellow workers" and the grievant "may not have received all the time that he wanted, but he apparently was allowed to use the amount of duty time regularly allowed in this office . . . ." Id. According to the Union, these statements demonstrate the Arbitrator's "biased conclusions" that are "based strictly on suppositions instead of concrete evidence." Id.
The Union further argues that the award is deficient because it is "not based on evidence submitted and testified to . . . ." Id. at 1. In support of this exception, the Union states that the Arbitrator essentially made a number of incorrect findings. These include the Arbitrator's statement that the contract was conspicuously marked so as to indicate that the contractor was a first time manufacturer; the Arbitrator's reference in the award to the testimony of two of the grievant's supervisors when only one of his supervisors actually testified; the Arbitrator's failure to apply testimony that established that the grievant had a larger workload than other quality assurance representatives in his office; and the Arbitrator's statement to the effect that the grievant admitted that he did not witness or conduct independent tests of the indicator wires.
Finally, the Union contends that the award is deficient because it is inconsistent with the Douglas factors and is contrary to law, rule and regulation. Accordingly, the Union requests that the award be "rescinded." Id. at 4.
IV. Agency's Opposition
The Agency contends that the Union is merely disagreeing with the Arbitrator's findings and conclusions and is attempting to relitigate the merits of the case before the Authority. The Agency asserts, in this regard, that the grievant was not disciplined for accepting nonconforming goods. Rather, the grievant "was disciplined because he negligently failed to ensure that the contractor performed a test on a critical characteristic, despite the fact that [he] knew that a prior shipment . . . had contained goods which failed that test." Opposition at 2.
The Agency further asserts that the Union has failed to establish that the Arbitrator's award is based on a nonfact or is inconsistent with law or regulation. Finally the Agency asserts that in considering the grievant's suspension, the Arbitrator was not governed by the Douglas factors.
V. Analysis and Conclusions
We will find an award deficient under section 7122(a) of the Statute when it is contrary to law, rule, or regulation, or is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. The Union has failed to establish that the Arbitrator's award is deficient on any of these grounds. Accordingly, we will deny the exceptions.
A. The Arbitrator Did Not Improperly Evaluate the Evidence
The Union argues that in making certain findings, the Arbitrator disregarded testimony that supported its position and, in so doing, failed to properly evaluate the evidence. In our view, the Union's exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and his evaluation of the evidence and testimony, including the credibility of witnesses and the weight to be given their testimony. As such, this exception provides no basis for finding the award deficient. See 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); U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 1300, 1302 (1990).
B. The Arbitrator Was Not Biased
To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. See 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, 47 FLRA No. 72, slip. op. at 9 (1993); U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 44 FLRA 1205, 1210 (1992).
The Union has not demonstrated that the Arbitrator was biased under any of the above criteria. In this regard, the Arbitrator fully articulated his reasons for finding that there was no basis on which to sustain the grievance. There is no evidence that this conclusion did not result from a neutral assessment of the facts presented to him. In our view, the Union is simply disagreeing with the Arbitrator's findings, reasoning, and conclusions and is attempting to relitigate the matter before the Authority. This exception provides no basis for finding the award deficient. See, for example, U.S. Office of Personnel Management, Central Office and American Federation of Government Employees, Local 32, 44 FLRA 287, 292 (1992) (OPM Central Office).
C. The Award Is Not Based on Nonfacts
We construe the Union's contention that the Arbitrator's award is "not based on the evidence submitted and testified to" as a contention that the award is based on nonfacts. Exceptions at 1. 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. 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, 106 (1992). The Union disputes certain arbitral findings, but has not established that the findings were central facts underlying the award or were clearly erroneous. Moreover, even if the Arbitrator made an incorrect finding, for example, by stating that two supervisors testified rather than one, the Union has not demonstrated that but for such a finding, the Arbitrator would have reached a different result. Therefore, the Union has not demonstrated that the award is based on a nonfact. Instead, this exception constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and provides no basis for finding the award deficient. See, for example, U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA 3, 9 (1993); Department of Veterans Affairs, Waco, Texas and American Federation of Government Employees, Local 2571, 42 FLRA 1109, 1111 (1991).
D. The Arbitrator Was Not Required to Consider the Douglas Factors
The Union further claims that the Arbitrator failed to apply the Douglas factors. Contrary to the Union's assertion, the Arbitrator was not required to consider these factors in deciding the matter before him. The so-called Douglas factors were enunciated by the Merit Systems Protection Board (MSPB) in Douglas v. Veterans Administration, 5 MSPR 280 (1981). These factors essentially constitute guidelines governing the appropriateness of penalties. The Authority has repeatedly held that arbitrators are bound by the same substantive standards as the MSPB only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. See International Federation of Professional and Technical Engineers, Local 11 and U.S. Department of the Navy, Naval Electronic Systems Engineering Center, Vallejo, California, 46 FLRA 893, 902 (1992); U.S. Department of the Army, III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 46 FLRA 609, 613 (1992). Specifically, suspensions of 14 days or less are not covered under 5 U.S.C. §§ 4303 or 7512. See U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida, and American Federation of Government Employees, National Border Patrol Council Local 3725, 36 FLRA 928, 932 (1990). Therefore, because the grievant in this case was given a 3-day suspension, the Arbitrator was not bound to follow the same substantive standards as the MSPB. Consequently, we reject the Union's assertions that the award is deficient because it is inconsistent with the Douglas factors.
E. The Award Is Not Contrary to Law, Rule or Regulation
Finally, the Union claims that the award is contrary to law, rule and regulation. However, the Union cites no law, rule, or regulation with which the award allegedly conflicts. In the absence of any such evidence, we find that this exception provides no basis for finding the award deficient. See, for example, OPM Ce