47:1364(127)AR - - AFGE Local 3947 and Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, MN - - 1993 FLRAdec AR - - v47 p1364
[ v47 p1364 ]
The decision of the Authority follows:
47 FLRA No. 127
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL MEDICAL CENTER
July 27, 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 Christine D. Ver Ploeg 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 in this case concerned the Agency's 14-day suspension of the grievant. The Arbitrator found that the suspension was issued for just cause and denied the grievance. 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
At all times relevant, the grievant was employed by the Agency as a warehouse worker leader. The incident precipitating her suspension occurred when one inmate assaulted another inmate in the dining facility. The Arbitrator found that the assault was "extremely vicious" and further described it as both "unusual and serious . . . ." Award at 4. The grievant was in the dining area at the time the incident occurred. It was the grievant's response to the incident that caused the Agency to charge her with: "(1) failing to respond appropriately to an emergency situation, and (2) making false or misleading statements during an official investigation." Id. at 2. The Agency initially proposed that the grievant be suspended for 21 days without pay, but later reduced the suspension to 14 days.
The Union filed a grievance contesting the Agency's suspension of the grievant. The grievance was not resolved and was submitted to arbitration. The issue before the Arbitrator was:
Did the Employer have just cause to suspend the [g]rievant for 14 days? If not, what shall be the remedy?
Id. at 1.
The Union argued before the Arbitrator that in responding to the altercation, the grievant "not only displayed good judgment," but adhered to the Agency's "express policies and procedures[.]" Id. at 5. According to the Union, when the fight between the inmates broke out, the grievant went immediately to a telephone. In route, the grievant was alerted to the fact that the inmates had been separated. Therefore, the grievant did not dial "222", the general emergency number, or use a "Code 45", the code for medical emergencies. Instead, she called the Control Center Office (Control) because she believed that this would "yield the best result . . . ." Id. at 8, 9 (citing Exhibit 21). She then advised the Control Officer that there was an emergency situation in the dining area. In response to the Control Officer's inquiry, she additionally confirmed that medical assistance was required.
After speaking to the Control Officer, the grievant immediately called the Lieutenant's Office. According to the Union, during this call the grievant stated that there had been a fight between two inmates, that they had been separated, and that medical assistance was required. The Union claimed that she then requested that a Lieutenant be sent over to escort the aggressor inmate to segregation, after which she positioned herself so as to protect the injured inmate from further assault and calmed the other inmates who were upset by what had transpired.
In accordance with these facts, the Union argued that the grievant's "actions contributed to the swift and satisfactory resolution of the situation[.]" Id. at 5. The Union further argued, inter alia, that the Agency "failed to meet its burden of proving the charges against the [g]rievant;" that "the testimony of key witnesses was substantially inaccurate and incorrect;" and that the investigation in this matter was "flawed" because: "it was not conducted and completed in a timely manner;" the investigator "made numerous procedural errors;" and the Agency had a "hidden agenda." Id.
The Agency disputed the Union's version of the facts. Before the Arbitrator, the Agency argued that upon witnessing the emergency situation, the grievant failed to respond as she had been trained in that she failed to dial either "222" or use a "Code 45". Moreover, during her conversation with the Control Officer, the grievant failed to communicate that there was an emergency or that there was a need for medical assistance. In this regard, the Agency argued that the physician's assistant who did report to the scene of the attack did so, not as a result of the grievant's call to Control, but as a result of a radio transmission. According to the Agency, the radio transmission was made by a male voice and therefore could not have been made by the grievant, a female who did not have a radio. In addition, the Agency argued that after making these calls, the grievant failed to protect the scene of the incident or to protect the victim from further assault. Finally, the Agency maintained that during its official investigation, the grievant made false or misleading statements.
The Arbitrator found that the 14-day suspension of the grievant was for just cause under the terms of the parties' collective bargaining agreement and denied the grievance. In reaching that result, the Arbitrator concluded that the grievant failed to respond appropriately to an emergency situation and that "her lack of judgment at a crucial time . . . affected the well-being of the Institution." Id. at 13.
The Arbitrator found that the undisputed evidence demonstrated that "at the time in question, the [g]rievant knew there was an emergency situation." Id. at 7. The Arbitrator additionally observed that at that point, the grievant "had three options: (1) phone the Control Center and speak directly to the Officer in Charge; (2) dial the Bureau's general emergency code, 222 . . . , which automatically [sounds] an alarm . . . and brings all available personnel running to the scene; or (3) dial 45, which indicates a medical emergency and brings medical personnel running." Id. at 2-3. The Arbitrator noted that after giving some thought to dialing "222" or using a "Code 45" the grievant decided to call the Control Center. Although the Arbitrator found that, under the circumstances, the most appropriate response would have been to dial "222," the Arbitrator additionally found that "[f]ailing to do that, [the grievant] had a clear obligation to . . . communicate to the . . . Control Officer, an accurate assessment of the seriousness of the situation and the need for medical assistance." Id. at 9. The Arbitrator concluded that a careful review of the evidence reflected that the grievant failed to communicate to the Control Officer that "this was an emergency, or that it required medical assistance." Id. at 15. Similarly, the Arbitrator found that the grievant failed "to fully and completely provide the Acting Lieutenant with essential information." Id. at 12.
The Arbitrator specifically rejected the Union's argument that the physician's assistant arrived at the scene in direct response to the grievant's call to the Control Center and that there was no "mystifying" male voice. Id. at 11. The Arbitrator based this finding on, inter alia (1) the testimony of the Control Officer, who "consistently and unequivocally" insisted that the need for medical assistance was communicated by way of a radio transmission; (2) the testimony of the Compound Officer who first responded to the scene and who testified that he heard a radio transmission by a male voice stating that a physician's assistant was needed in the inmate dining room; and (3) a statement made by the grievant in her written response to the effect that she chose not to dial a Code 45 because she was not immediately sure that there was a medical emergency. Id. at 9.
The Arbitrator further rejected the grievant's claim that after making the appropriate telephone calls, "she directed her energies to calming the aggressor inmate, as well as the 50+ inmates in the dining room at the time[.]" Id. at 13. Instead, the Arbitrator found that this claim "is not supported by any evidence other than [the grievant's] own testimony." Id.
Finally, the Arbitrator found that "the evidence does not support the Union's claim that the [Agency's] investigation of this matter has been so flawed that discipline should not be sustained." Id. at 17. In this regard, the Arbitrator noted that the grievant was given an "opportunity to tell her full side of the story" both in the investigation of this matter and during the arbitration hearing. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
In its first exception, the Union argues that the Arbitrator should have considered the Douglas factors in arriving at the award. In this regard, the Union sets forth the twelve factors enunciated in Douglas v. Veterans Administration, 5 MSPR 280 (1981) (Douglas v. VA), and lists after each "the testimony and information . . . available to the [A]rbitrator and which [the Arbitrator] failed to discuss, acknowledge or consider . . . ." Exceptions at 3. More specifically, the Union argues, inter alia, that the penalty imposed by the Agency was inappropriate because: it was not commensurate with the nature and seriousness of the offense, and its relation to the grievant's duties and position; it was not consistent with the penalties imposed upon other employees as a result of their responses to the same incident; and there were mitigating circumstances surrounding the offense, including "bad faith" on the part of the investigator and the Warden. Id. at 16 (emphasis removed).
In its second exception, the Union contends that the Arbitrator was biased. In support of this contention, the Union cites statements made by the Arbitrator to the effect that the grievant should have realized that she was faced with a volatile situation, and that the grievant knew that an emergency situation existed and that medical assistance was required. The Union asserts that such statements, as well as many of the Arbitrator's findings, illustrate her "unacceptably biased interpretation of the record" and the "extent to which her bias . . . color[s] the facts of this case." Id. at 24, 21.
The Union also contends in its second exception that the Arbitrator "misstates or misrepresents numerous facts and testimony[.]" Id. at 19. In this regard, the Union argues that the Arbitrator essentially made a number of incorrect findings. These include the Arbitrator's assertion that when the fight between the inmates broke out, there were three options available to the grievant, when the record reflects that there were actually four; the Arbitrator's statement that one of the individuals with whom the grievant spoke was the Lieutenant when the individual was actually the Acting Lieutenant; and the Arbitrator's statement to the effect that the Compound Officer who responded to the assault testified that he would have telephoned "222".
The Union additionally argues in its second exception that the award is deficient because the Arbitrator arrived at "conclusions that were not supported by . . . the preponderance of the evidence." Id. In support of this contention, the Union cites numerous examples of alleged error by the Arbitrator. For example, the Union asserts that the Arbitrator disregarded statements made by the grievant in affidavits and memoranda that "she and the [C]ontrol [O]fficer discussed and established that immediate medical attention was necessary." Id. at 25. Similarly, the Union argues that the Arbitrator disregarded the testimony of a witness who stated that when the grievant was on the phone with the Control Center, the grievant asked the witness if the victim needed medical attention, to which he responded affirmatively. The Union also maintains that the Arbitrator erred in crediting the testimony of the Control Officer who stated that she remembered the event well because "she was later . . . floored when she learned the extent of the injuries involved[,]" and in concluding that "the fact that the Physician's Assistant did not hear a male radio call for a P.A. is not relevant[.]" Id. at 26, 27 (quoting the Award at 10 and 11). The Union further asserts that the Arbitrator erred in failing to conclude that the "preponderance of evidence supports the [g]rievant's claim that there was no 'mystifying' male voice . . . and that that radio message was precipitated solely by [the grievant's] phone call to [C]ontrol." Id. at 27.
In its third exception, the Union asserts that the Arbitrator failed to fully consider its claim that the Agency's investigation of this matter was inadequate. In support of this assertion, the Union enumerates various "procedural errors" committed by the Agency. Id. at 34. In the Union's view, such errors include the "failure to identify the 'male voice'," the "untimeliness of the investigation[,]" the "use of intimidation and coercion by the investigator" and the "insincerity of the charges . . . ." Id.
Similarly, the Union contends in its fourth exception that the "Arbitrator . . . failed to consider and rule on [its] claim that the [A]gency failed to disclose . . . and intentionally withheld evidence." Id. at 36. More specifically, the Union asserts that during the discovery process preceding arbitration, the Agency intentionally withheld certain information from the Union, and subsequently failed to provide employees with other information as required by the parties' collective bargaining agreement. The Union additionally asserts that the grievant testified that she believed that numerous individuals were interviewed and affidavits taken that were never entered into the record. The Union argues that the Arbitrator had an obligation to ascertain whether the Agency wrongfully suppressed such evidence, and in failing to so rule, the Arbitrator failed to "guarantee and protect the [g]rievant's right to a fair and impartial review of the facts and evidence." Id. at 37.
Finally, the Union argues in its fifth exception that the Arbitrator failed to consider the "full body of evidence in reaching the award decision." Id. at 38. In this regard, the Union cites the Arbitrator's statement that she "in no way relied upon the findings of either the Special Investigative Officer or the Office of Internal Affairs in arriving at [her] findings of fact." Id. (quoting the Award at 14). The Union argues that the Arbitrator's failure to rely on such evidence "violated the [g]rievant's right to a fair and impartial review of the facts and evidence." Id.
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 this case before the Authority. The Agency asserts, in this regard, that the "gist of the Union's exceptions is that the Arbitrator did not address certain evidence in her award, and, that her consideration of the evidence is erroneous." Opposition at 3.
The Agency further asserts that in considering the grievant's suspension, the Arbitrator was not governed by the Douglas factors. Additionally, the Agency asserts the Union has failed to establish that the Arbitrator's award is based on nonfact, that the Arbitrator failed to hold the Agency to its burden of proof, or that the absence of certain evidence affected the fairness of the hearing.
V. Analysis and Conclusions
A. The Arbitrator Was Not Required to Consider the Douglas Factors
In its first exception, the Union contends 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. VA. 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. section 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. section 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 14-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.
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 Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 776, 784 (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).
We conclude that the Union's contention provides no basis for finding the award deficient. We have carefully reviewed the statements and findings cited by the Union and are not persuaded that the Arbitrator was biased under any of the above criteria. We note, in this regard, that the Arbitrator fully articulated her reasons for finding that there was no basis on which to sustain the grievance. Moreover, there is no evidence that this conclusion did not result from a neutral assessment of the facts presented to her. 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. Such an exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 966 (1993) (Defense Contract Management District South).
C. The Award Is Not Based on Nonfacts
We construe the Union's contention that the Arbitrator misstated or misrepresented facts and testimony as a contention that the award is based on nonfacts. 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, National Federation of Federal Employees, Local 259 and U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee, 45 FLRA 773, 780 (1992). Although the Union disputes certain arbitral findings, it 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 when the grievant telephoned the Lieutenant's Office, she spoke with the Lieutenant rather than the Acting Lieutenant--the Union has not demonstrated that but for this finding, the Arbitrator would have reached a different result. We conclude that this is also true of the remaining arbitral findings challenged in this regard. 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, Defense Contract Management District South, 47 FLRA at 967; U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA 3, 9 (1993).
D. The Arbitrator Did Not Improperly Evaluate the Evidence
In exceptions two and five, respectively, the Union contends that the award is deficient because the Arbitrator arrived at conclusions that are not supported by a preponderance of the evidence, and that the Arbitrator dismissed record evidence. We construe these contentions as claims that the Arbitrator failed to properly evaluate the evidence. In our view, these exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact and her evaluation of the evidence and testimony, including the credibility of witnesses and the weight to be given their testimony. As such, these contentions provide no basis for finding the award deficient. See American Federation of Government Employees, Local 171 and Federal Correctional Institution El Reno, Oklahoma, 30 FLRA 295, 296 (1987).
Furthermore, to the extent that the Union argues that the Arbitrator failed to establish that the Agency proved its case against the grievant by a preponderance of the evidence, such an exception must be rejected. Unless a specific burden of proof is required by law or the parties' collective bargaining agreement, an arbitrator has authority to establish whatever standard he or she considers appropriate and the award will not be found deficient on that basis. See American Federation of Government Employees, Local 1988 and U.S. Department of Veterans Affairs, Brooklyn Medical Center, 46 FLRA 1450, 1455 (1993) (VA, Brooklyn Medical Center). In this case, the Union does not establish that the Arbitrator was required to apply any particular standard of proof. Therefore, its exception that the Arbitrator erred in applying an incorrect burden of proof fails to establish that the award is deficient. See U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 41 FLRA 472, 475 (1991).
E. The Arbitrator Did Not Deny the Union a Fair Hearing
Finally, we construe the Union's third and fourth exceptions as contentions that the Agency denied it 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. The Authority has consistently held that arbitrators have considerable latitude in the conduct of the 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. See VA, Brooklyn Medical Center, 46 FLRA at 1454; 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). 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.
The Union essentially argues that it was denied a fair hearing for two reasons: (1) the Arbitrator did not fully consider its claim that the Agency's investigation of this matter was inadequate and contained numerous procedural errors; and (2) the Arbitrator failed to consider and rule on its claim that the Agency failed to disclose and intentionally withheld evidence. We find no merit to either of these contentions.
The Arbitrator construed the Union's claims as a contention that the Agency's investigation of this matter was "prejudicially flawed." Award at 14. In rejecting that contention, the Arbitrator found that there was "no evidence of bad faith or coercion that would overcome the record in this case." Id. In arriving at this finding, the Arbitrator specifically noted that she had "considered the [g]rievant's claim that the investigation of this matter, particularly the investigation conducted by the Special Investigative Officer, was biased and incomplete." Id. She further noted that she had scrutinized and weighed all the evidence and had in no way relied on the findings of the Special Investigative Officer or the Office of Internal Affairs in arriving at the award. We therefore conclude that the Union has not shown that the Arbitrator failed to adequately consider its claim that the Agency's investigation of this matter was flawed. We additionally conclude that the Union has failed to demonstrate how any omission on the part of the Arbitrator--for example, by failing to identify the male voice or by failing to address the use of intimidation and coercion by the investigator and the alleged insincerity of the charges--affected the overall fairness of the arbitration proceeding. See U.S. Department of the Air Force, Griffiss Air Force Base, New York and American Federation of Government Employees, Local 2612, 39 FLRA 471, 474-75 (1991). In our view, the Union's arguments constitute mere disagreement with the manner in which the Arbitrator conducted the arbitration hearing and with the Arbitrator's evaluation of the evidence. As such, this exception provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 2317 and U.S. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 46 FLRA 1028, 1031 (1992).
Furthermore, with regard to the Union's argument that the grievant was denied due process as a result of the Agency's alleged failure to disclose certain evidence, we find that the Union has failed to demonstrate that such evidence is pertinent and material and that its provision would have affected the fairness of the proceeding as a whole. See, for example, U.S. Department of Justice, Federal Bureau of Prisons, Terre Haute, Indiana and American Federation of Government Employees, Local 720, 41 FLRA 237, 244 (1991) (FBP, Terre Haute, Indiana). In this regard, we note that the Arbitrator specifically found that the grievant was given an "opportunity to tell her full side of the story" in the investigation and arbitration of this matter and that any earlier errors made by the Agency were subsequently remedied. Award at 17. Additionally, as noted above, the Arbitrator has made clear that her findings were based only on evidence offered at the hearing, evidence which the Union was given full opportunity to rebut. See FBP, Terre Haute, Indiana, 41 FLRA at 244 (rejecting the Union's contention that it was prejudiced by the Agency's refusal to release certain information because there had been no showing that the arbitrator had refused to hear evidence regarding its claim and b