49:0045(8)AR - - Justice, Federal Bureau of Prisons Correctional Institution, McKean, PA and AFGE, Council of Prison Locals, Local 3974 - - 1994 FLRAdec AR - - v49 p45



[ v49 p45 ]
49:0045(8)AR
The decision of the Authority follows:


49 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

CORRECTIONAL INSTITUTION

MCKEAN, PENNSYLVANIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS

LOCAL 3974

(Union)

0-AR-2509

_____

DECISION

February 4, 1994

_____

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 Myron L. Joseph 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 Agency's suspension of the grievant. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

A grievance contesting the Agency's 3-day suspension of the grievant for insubordination was denied and was submitted to arbitration on the following issue, as framed by the Arbitrator:

Was the [g]rievant . . . suspended for just and sufficient cause, and if not, what shall the remedy be?

Award at 1.

According to the Arbitrator, the disputed suspension was based on one charge of insubordination which was supported by two specifications. The Arbitrator determined that the first specification of insubordination was not supported by the record. The second specification charged the grievant with:

failing to provide an inmate crew for snow removal as ordered by [his supervisor], with stating that "if the Lieutenants want campers to shovel snow, they can go to the camp and get them themselves," and with hanging up on [his supervisor] when they talked on the phone. . . .

Id.

The Arbitrator found that the grievant did not attempt to carry out the order to send a snow removal crew, and that "the totality of the evidence supports a finding of insubordinate behavior." Id. at 3. The Arbitrator also found the grievant's testimony to the contrary was not credible. In addition, he found that the supervisor's use of "mild profanity in his attempt to stress the importance he gave to his order[]" did not justify grievant's action in hanging up on his supervisor. Id. at 4. Accordingly, as his award, the Arbitrator denied the grievance.

III. First Exception

A. Positions of the Parties

According to the Union, the Agency failed to follow its emergency snow-removal policies and, thereby, caused the grievant "harmful error." Exceptions at 1.

The Agency responds that the harmful error rule applies only to serious adverse actions under 5 U.S.C. § 7512. In addition the Agency argues that "whether it followed its procedures or not had nothing to do with" the grievant's insubordination. Opposition at 2.

B. Analysis and Conclusions

Under section 7122(a) of the Statute, an arbitration award will be found deficient, among other things, if it is contrary to law, rule or regulation. Insofar as the Union asserts that the award is deficient because the Arbitrator was required to apply the "harmful-error" rule as it is applied by the Merit Systems Protection Board (MSPB) under 5 U.S.C. § 7701(c), the assertion is rejected. It is well settled that "arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over actions not covered by 5 U.S.C. §§ 4303 and 7512." American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 40 FLRA 958, 962-63 (1991). As this case involves a 3-day suspension, it is not covered by 5 U.S.C. §§ 4303 or 7512 and, therefore, no basis is provided for finding the award contrary to 5 U.S.C. § 7701(c). See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, AFL-CIO, Local 3610, 41 FLRA 504, 511 (1991).

IV. Second Exception

A. Positions of the Parties

The Union argues that the Arbitrator "failed to force the Agency to follow its own written . . . standards of employee conduct and responsibility" when he sustained the Agency "in allowing a supervisor to use profain [sic] language towards a subordinate[.]" Exceptions at 1.

The Agency did not respond to this contention.

B. Analysis and Conclusions

We construe this exception as an assertion that the award is contrary to an Agency regulation relating to standards of conduct.

Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found to be deficient under section 7122(a)(1) of the Statute. U.S. Department of Veterans Affairs, Medical Center, Atlanta, Georgia and National Federation of Federal Employees, Local 2102, 44 FLRA 427, 432 (1992). However, the Union has failed to provide a copy of the Agency's regulation relating to standards of conduct or the pertinent portions on which it relies. Section 2425.2(d) of our Rules and Regulations requires that an exception be a self-contained document that includes copies of pertinent documents. As the Union has not provided a copy of the regulation relating to standards of conduct on which it relies, we conclude that the Union has failed to demonstrate that the award is deficient because it is inconsistent with them. See U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1142 (1992) (Tinker Air Force Base). Accordingly, this exception is denied.

V. Third Exception

A. Positions of the Parties

The Union asserts that the award violates Article 30 of the parties' collective bargaining agreement.(*) Additionally, the Union argues that the Arbitrator failed to consider the concept of progressive discipline as outlined in Article 30, Section c, of the parties' agreement.

The Agency responds that the Union has failed to demonstrate that the award is deficient.

B. Analysis and Conclusions

We construe the Union's assertion as a contention that the award fails to draw its essence from the agreement. To establish that an award fails to draw its essence from an agreement, a party must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. U.S. Department of the Army, Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 1113, 1115 (1991).

The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator interpreted and applied the parties' agreement in concluding that the grievant's actions "constituted just and sufficient cause for discipline." Award at 5. We have no reason to conclude that his interpretation of the agreement is implausible, irrational, or unconnected to the wording of the agreement. See General Services Administration and American Federation of Government Employees, Council 236, 47 FLRA 1326, 1334 (1993). Instead, in our view, the Union is merely expressing disagreement with the Arbitrator's interpretation of the parties' agreement and his evaluation of the evidence. As such, the Union's exception provides no basis for finding the award deficient.

We also reject the Union's assertion that the award conflicts with the "progressive discipline concept" of Article 30, Section c of the parties' agreement. Exceptions at 1. We note, at the outset, that because an arbitrator need not set forth specific findings and rationale on each issue, the fact that the Arbitrator did not mention a specific contract section does not mean that it was not considered. See generally, 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, 898 (1992). Moreover, the Union has failed to provide a copy of Section c of Article 30 for our review. Section 2425.2(d) of our Rules and Regulations requires that an exception be a self-contained document that includes copies of pertinent documents. See Tinker Air Force Base, 45 FLRA at 1142. As the Union has not provided a copy of the provision on which it relies, we conclude that the Union has failed to demonstrate that the award fails to draw its essence from that provision of the parties' agreement. See American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 46 FLRA 1191, 1194 n.6 (1993). Accordingly, the exception is denied.

VI. Fourth Exception

A. Positions of the Parties

The Union asserts that the Arbitrator failed to consider the evidence of two witnesses who testified that the grievant complied with the supervisor's instructions. The Agency responds that the Union seeks only to challenge the Arbitrator's credibility determinations, and fails to assert a basis for finding the award deficient.

B. Analysis and Conclusions

We construe the Union's contention that the Arbitrator failed to consider the evidence of two witnesses 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, 105-7 (1991). However, arbitrators have considerable latitude in the conduct of a 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 Veterans Affairs, Medical Center, Lexington, Kentucky and National Association of Government Employees, Local R5-184, 47 FLRA 498, 503-4 (1993) (Medical Center, Lexington).

The Union claims that the Arbitrator failed to consider the evidence of two witnesses whose testimony supported the grievant's assertions that the grievant attempted to carry out his supervisor's order. The Arbitrator specifically found that the totality of the evidence failed to support the grievant's position on this issue. The Union, 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 Union's claim constitutes mere disagreement with the Arbitrator's evaluation of the evidence and testimony presented at the hearing, and provides no basis for finding the award deficient. See Medical Center, Lexington.

VII. Remaining Exceptions

A. Positions of the Parties

The Union contends that the Arbitrator "appeared to be" biased and that he "based his decision on nonfact . . . ." Exceptions at 2. The Agency does not responded specifically to these contentions.

B. Analysis and Conclusions

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 the party. See U.S. Office of Personnel Management, Central Office and American Federation of Government Employees, Local 32, 44 FLRA 287, 292 (1992). The Union offers no support for its assertion that the Arbitrator was biased and, as such, has failed to establish that the award is deficient under any of the tests set forth above.

The Union also has failed to support its assertion that the Arbitrator's award is based on nonfacts. In order to establish that an award is based on a nonfact, the party making the assertion must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. American Federation of Government Employees, Local 2921 and U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, 47 FLRA 446, 452 (1993). The Union has not identified the asserted nonfact and, in general, offers no elaboration on its assertion. In our view, the assertion constitutes mere disagreement with the Arbitrator's findings and conclusions and his interpretation of the parties' agreement, and provides no basis on which to find the award deficient. See, for example, Wiregrass Metal Trades Council and U.S. Department of