48:0213(16)AR - - Overseas Education Association, West Point Elementary School Teachers and DOD, U.S. Military Academy, West Point, NY - - 1993 FLRAdec AR - - v48 p213



[ v48 p213 ]
48:0213(16)AR
The decision of the Authority follows:


48 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

OVERSEAS EDUCATION ASSOCIATION

WEST POINT ELEMENTARY SCHOOL TEACHERS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

UNITED STATES MILITARY ACADEMY

WEST POINT, NEW YORK

(Agency)

0-AR-2397

_____

DECISION

August 13, 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 Monroe Berkowitz 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 found that the reprimand of the grievant was for just cause and denied the grievance. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is employed as a special education teacher at the Agency. On February 4, 1992, she was issued a letter of reprimand by the superintendent of schools. In the letter, she was informed that the action was being taken because, among other things, she had arrived at a program review meeting on December 9, 1991, without having completed the program form as she had been instructed by her supervisor. In the letter, the superintendent noted that the grievant previously had admitted that she did not follow procedures and that in a memorandum dated November 18, 1991, she had been formally counseled regarding the failure to follow instructions. The grievant filed a grievance disputing the reprimand. The grievance was not resolved and was submitted to arbitration.

Before the Arbitrator, the Union claimed that there was a question about whether applicable rules required the program form to be filled out in advance. The Union also claimed that the Agency had violated several provisions of the parties' collective bargaining agreement in issuing the reprimand. The Union maintained that the violations constituted harmful errors and warranted vacating the reprimand. Specifically, the Union maintained that Article 13, Section 1 requires that discipline "must be timely" and that the lapse of time of almost 2 months between the incident and the reprimand violated the timeliness requirement. The Union also argued that the Agency's investigation violated Article 13, Section 1b. The Union maintained that the investigator was not impartial and that the investigation was inadequate because neither the grievant nor the Union was contacted. The Union further argued that the Agency violated the grievant's due process rights by failing to give her advance notice of the reprimand.

The Arbitrator ruled that the Agency issued the reprimand for just cause. The Arbitrator found that the grievant's supervisor instructed the grievant to complete the form before the meeting and that this instruction was clearly communicated to the grievant. He concluded that the grievant was obligated under the circumstances to have followed the instructions and failed to do so and that discipline was warranted on this basis alone. In addition, he found that the penalty of a reprimand was appropriate because the grievant had previously been counseled on her failure to follow instructions.

The Arbitrator also ruled that there were no procedural errors committed by the Agency. The Arbitrator noted that the collective bargaining agreement provides only that disciplinary actions are to be timely. In view of the procedures to be followed and the holidays that intervened, the Arbitrator refused to find that the issuance of the reprimand on February 4 for the offense of December 9 was untimely. The Arbitrator further found that the investigation was impartial and that the grievant was given notice of the proposed reprimand and was well aware that it was being contemplated.

Accordingly, as his award, the Arbitrator denied the grievance.

III. First Exception

A. Positions of the Parties

1. Union

The Union contends that the award is deficient because the Arbitrator relied on documents that were not presented or entered into the record during the arbitration. The Union notes that the Agency's post-hearing brief to the Arbitrator refers to memoranda dated November 18, 1991, December 10, 1991, and December 18, 1991, and that copies of the memoranda were submitted to the Arbitrator with the brief. The Union maintains that the Agency made no attempt to introduce these documents into the record. The Union asserts that the Arbitrator specifically referred to the November 18 memorandum in his award and that his reliance on the documents denied the grievant a fair hearing.

2. Agency

The Agency admits that the memoranda were referred to in its brief and copies were provided to the Arbitrator, but the Agency disputes that the Arbitrator failed to provide a fair hearing. The Agency asserts that the documents were provided to the Arbitrator as a courtesy and did not constitute new evidence. The Agency argues that the contents of the memoranda were described by Agency witnesses during the arbitration hearing, who were cross-examined by the Union, and in a memorandum introduced into evidence by the Agency. In addition, the Agency disputes that the Arbitrator relied on the memoranda in denying the grievance. The Agency argues that the decision is based on record evidence apart from the memoranda submitted with its brief.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the Arbitrator denied the grievant a fair hearing by accepting the memoranda submitted by the Agency with its post-hearing brief and by referring to the November 18 counseling memorandum in his award.

The Authority has consistently held that arbitrators have considerable latitude in the conduct of a hearing and the mere fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not provide a basis for finding an award deficient. For example, U.S. Department of the Army, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 39 FLRA 994, 997 (1991). We have recognized 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 and that parties to arbitration do not have an absolute right to cross-examination, but rather must only be given an adequate opportunity to present evidence and arguments. Id. We are not persuaded that the Arbitrator's acceptance of the disputed memoranda as part of the Agency's post-hearing brief and his reference to the counseling memorandum affected the fundamental fairness of the hearing or deprived the Union of an adequate opportunity to present its case.

The Agency concedes that the memoranda were not submitted into evidence. However, the Agency correctly states that the memoranda were described by Agency witnesses and were referenced in submitted exhibits. Both the grievant's supervisor and the superintendent of schools testified with respect to the content of the memoranda, and each was cross-examined by the Union. In addition, the memoranda were referenced in the letter of reprimand entered into evidence as joint exhibit 1 and the memorandum entered into evidence as Agency exhibit 1. Thus, in our view, the Arbitrator's acceptance of the documents did not prevent the Union from adequately presenting its case and did not affect the fundamental fairness of the arbitration proceeding.

Moreover, we disagree with the Union that "reliance on [the] documents permeate[d] the entire decision[.]" Exceptions at 4. In our view, the Arbitrator relied on the testimony and evidence submitted during the hearing to conclude that the grievant was obligated to have followed the clear instructions of her supervisor and that the failure of the grievant to have done so warranted the reprimand. The only document arguably relied on by the Arbitrator was the November 18 counseling memorandum in determining that the penalty of a reprimand was warranted because the grievant had previously been counseled. However, a reference to the previous counseling of the grievant was included in the letter of reprimand, which was admitted as evidence. Moreover, the counseling was testified to by both the grievant's supervisor and the superintendent.

Accordingly, we conclude that the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing, and we will deny the Union's exception. 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, 475 (1991) (union failed to demonstrate that the arbitrator's reference to certain documents, even if the documents were not properly entered into evidence, denied it a fair hearing); U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 364 (1990) (agency failed to establish that it was denied a fair hearing by the arbitrator's allegedly basing the award on statements in the union's post-hearing brief).

IV. Second Exception

A. Positions of the Parties

1. Union

The Union contends that the award is based on two nonfacts. The Union notes that the Arbitrator stated that "[t]he evidence is also clear that [the grievant] was given notice of the proposed reprimand and was well aware that it [was] being contemplated." Exceptions at 6-7 (quoting Award at 7). The Union asserts that the Arbitrator's finding is erroneous because the grievant did not receive the notice required by Article 13, Section 2a and 2b of the agreement.(*) The Union claims that the grievant "was not given any predecisional due process prior to the receipt of the letter of reprimand." Id. at 8-9. The Union argues that such notice is a basic due process right and a statutory requirement of 5 U.S.C. § 7513 and that the failure to provide such notice constitutes harmful error that warrants vacating the award.

The Union further notes that the Arbitrator stated that "the matter was being reviewed and investigated prior to the issuance of the formal letter." Id. at 9 (quoting Award at 7). However, the Union contends that no one ever contacted either the grievant or the Union to allow them to participate in the investigation. The Union maintains that although there is a meeting mentioned in the letter of reprimand, the grievant merely listened to her supervisor without commenting. The Union claims that because there was no notice of an investigation, this meeting cannot satisfy the contractual requirement that the grievant be notified prior to the issuance of the reprimand. The Union argues that the failure to notify the grievant constitutes harmful error that warrants vacating the award.

2. Agency

The Agency contends that the exception should be denied because the Union has failed to establish that the alleged nonfacts were the central facts underlying the award. The Agency claims that the central facts underlying the award were that the grievant had committed the misconduct with which she was charged and that the penalty assessed was reasonable. The Agency also argues that the Union is merely disagreeing with the Arbitrator's findings.

B. Analysis and Conclusions

The Authority will find an arbitration award deficient under the Statute because it is based on a nonfact when the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. For example, American Federation of Government Employees, Council 236 and General Services Administration, 47 FLRA 576, 582 (1993). The Arbitrator specifically found that the grievant was given notice of the proposed reprimand and was well aware that it was being contemplated. The Arbitrator also specifically found that the matter was being reviewed and investigated prior to the issuance of the formal letter and that the investigation was impartial. In addition, the letter of reprimand specifically states that the grievant offered no comment when the incident was discussed with her on December 18, 1991. The Union fails to establish that the findings by the Arbitrator are clearly erroneous. In our view, the Union's exception constitutes nothing more than disagreement with these specific findings of fact by the Arbitrator. The Authority has consistently held that mere disagreement with an arbitrator's findings of fact does not establish that the award was based on a nonfact and does not otherwise provide a basis for finding an award deficient under the Statute. Id.

In addition, the Union fails to establish that even if the arbitrator's factual findings were clearly erroneous, the Arbitrator would have reached a different result and would have ruled that the procedural errors were harmful and warranted vacating the reprimand. As we recognized in U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 212 (1991), with respect to lesser disciplinary actions, such as this one, not covered by 5 U.S.C. § 7512, "it is for the arbitrator to determine whether an agency's disciplinary action should be reversed or mitigated based on any finding of a violation of the collective bargaining agreement." In the absence of a statement by the Arbitrator that he would have vacated the discipline if the Union had established a procedural error, the Union cannot demonstrate, and we cannot find, that the result in this case would have been different.

Moreover, we further reject the Union's exception to the extent that the Union is asserting that the Arbitrator erred by failing to find a harmful error that warranted vacating the discipline. We specifically reject the Union's reliance on either 5 U.S.C. § 7513 or Article 13, Section 2 of the collective bargaining agreement. Neither provision by its own terms applies to a written reprimand. Section 7513 relates only to serious adverse actions covered by section 7512: removals, suspensions for more than 14 days, reductions in grade or pay, or furloughs for 30 days or less. Article 13, Section 2 expressly applies only to "suspension[s] of 14 days or less[.]"

We also reject the Union's argument that the grievant was denied due process and that the denial warranted vacating the reprimand. As we recognized in U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1175 (1992), due process issues always involve the question of what process was due. In this case, the Arbitrator essentially found that the process due the grievant was that set forth in Article 13, Section 1 of the parties' collective bargaining agreement and that the Agency had observed the procedural requirements of that section. The Union fails to establish otherwise and, therefore, provides no basis for finding the award deficient. See National Federation of Federal Employees, Local 1781 and U.S. Department of Agriculture, Forest Service, 42 FLRA 703, 706 (1991) (union's exception to the arbitrator's refusal to vacate suspension as untimely under collective bargaining agreement constituted nothing more than disagreement with the arbitrator's interpretation and application of the agreement and an attempt to relitigate the issue before the Authority); U.S. Department of the Air Force, Randolph Air Force Base, Texas and American Federation of Government Employees, Local No. 1840, 40 FLRA 953, 957 (1991) (union's exception to the arbitrator's ruling that the agency did not commit a harmful error constituted an attempt to relitigate the issue before the Authority and mere disagreement with the arbit