48:0476(45)AR - - DOD, Defense Commissary Agency, Pearl Harbor, HI and IAM, Hawaii Federal Lodge 1998 - - 1993 FLRAdec AR - - v48 p476
[ v48 p476 ]
The decision of the Authority follows:
48 FLRA No. 45
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
PEARL HARBOR, HAWAII
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
HAWAII FEDERAL LODGE 1998
September 3, 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 Harvey A. Shapiro 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 grievant's 5-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 a cash clerk in the Pearl Harbor Naval Base Commissary Store. She was suspended for 5 days for the alleged improper use of coupons to obtain merchandise from the Commissary Store on September 30 and October 2, 1991, and for attempting to improperly use coupons in the same manner on an unspecified date in October 1991. The grievant filed a grievance protesting the suspension. The grievance was not resolved and was submitted to arbitration on the following issues stipulated by the parties:
1. Was the disciplinary action taken for justifiable reason?
2. Was the penalty reasonable?
Award at 2.
The Agency contended before the Arbitrator that the grievant had persuaded a cashier to accept merchandise coupons that were intended to give one free item for each item purchased so that the grievant would receive two items without having to pay any money. The cashier testified that she had complied with the grievant's demand because she feared retaliation from the grievant, who, as a cash clerk, was in a superior position at the store. The cashier also testified that the grievant had attempted to use coupons improperly in the same manner on a second occasion. The cashier testified that on the second occasion she refused to comply with the grievant's demand and reported the incident to a supervisor. Another cashier testified that the grievant had attempted to persuade her to accept merchandise coupons improperly, but that she had refused. The Agency contended that its investigation and the evidence contained in cash register receipts showed that the grievant used the coupons improperly and, therefore, the suspension of the grievant was justified. The Union denied that the grievant had acted improperly and contended that the charges against the grievant were unjustified. The Union maintained that the Agency had failed to substantiate the charges against the grievant.
With respect to the decision to suspend the grievant for 5 days, an Agency official testified that the Agency's disciplinary guidelines specified that the punishment for the type of offense committed by the grievant ranged from reprimand to removal. The official testified that "the offense was serious enough to justify removal from her position but, taking into account the [g]rievant's length of service and other factors, he felt that the [5-day] suspension was appropriate for 'promoting the efficiency of the service.'" Id. at 4.
The Arbitrator concluded that the Agency had established that it was justified in taking disciplinary action against the grievant. He noted that although he would have preferred "to have heard testimony about the appropriateness of a suspension for five days based on similar incidents, the Union offered no testimony or argument that the [Agency's] penalty was too harsh. Therefore, the Arbitrator feels he has no grounds for reducing the penalty." Id. at 5.
III. Union's Exceptions
The Union contends that the Arbitrator failed to evaluate the evidence properly and was biased against the Union. With regard to its argument that the Arbitrator was biased, the Union states that the Arbitrator "wanted a comparison of similar offenses and disciplines[,] but never said a word during the [a]rbitration." Exceptions at 1. The Union maintains that the Agency failed to provide documentation to support its charges against the grievant and that the Agency's witnesses "had a grudge against the [g]rievant." Id. at 2.
IV. 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 the private sector. 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's Evaluation of the Evidence
The Union argues that the Arbitrator failed to properly evaluate the evidence and contends that the evidence does not support the Agency's position. 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 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).
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 a justifiable reason for the discipline of the grievant. We see no evidence that this finding did not result from a neutral assessment of the facts presented to him. In particular, the Union has not shown that the Arbitrator's failure to ask for evidence comparing the grievant's discipline with other disciplinary actions was the result of partiality or corruption on the part of the Arbitrator. Moreover, the Un