49:0691(65)AR - - HHS, SSA, Region X, Office of Hearings and Appeals and AFGE, Local 3937 - - 1994 FLRAdec AR - - v49 p691



[ v49 p691 ]
49:0691(65)AR
The decision of the Authority follows:


49 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

REGION X

OFFICE OF HEARINGS AND APPEALS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3937

(Union)

0-AR-2523

_____

DECISION

April 7, 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 Thomas F. Levak 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 two grievances relating to the Agency's 14-day suspension of the grievant. 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

The Agency proposed to suspend the grievant for 14 days for falsifying an overtime roster. Among other things, the notice advised the grievant of her right to make an oral reply to the proposed suspension. Immediately prior to the grievant's oral reply, the deciding official advised the grievant and her Union representative that he intended to use a secretary as a note-taker during the reply. The grievant objected to the use of a note-taker and refused to proceed with the oral reply. Subsequently, after consideration of the Union's written reply to the proposed suspension, the deciding official decided to suspend the grievant for 14 days.

The Union filed two grievances relating to the suspension. The first objected to the deciding official's proposed use of a note-taker during the grievant's oral reply. The second contested the suspension. When the grievances were not resolved, they were consolidated and submitted to arbitration.

As the parties were unable to stipulate the issues to be resolved in arbitration, the Arbitrator framed the issues as follows:

(1) Did the Decision to suspend the Grievant violate Agreement Articles 3, 10 or 23? If so, was there harmful error committed by the Agency; and if so, what is the appropriate remedy?

(2) Did the Deciding Official's determination to use a note-taker at the reply presentation violate Agreement Articles 1, 2, 3, 4 or 23, or any applicable statute or regulation: If so, was there harmful error committed by the Agency; and if so, what is the appropriate remedy?

Award at 2-3 (footnote omitted).

Before the Arbitrator, the Union contended that the Agency had charged the grievant with commission of a crime(1) and, as such, was required to prove its case beyond a reasonable doubt. The Union contended, in this regard, that the grievant did not falsify her overtime roster and that the Agency failed to prove otherwise. The Union also contended that the Agency had violated the grievant's rights under National Labor Relations Board v. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten) and Miranda v. Arizona, 384 U.S. 436(1966) (Miranda). In addition, according to the Union, the Agency violated Article 3.5.E of the parties' agreement and its violation "constitute[d] a harmful error" which required reversal of the suspension.(2) Award at 14. Finally, the Union argued that the deciding official's attempt to use a note-taker at the grievant's oral reply violated "the [a]greement, the understanding of the parties and established past practice." Id.

The Arbitrator denied the grievances. The Arbitrator concluded first that "the charged facts were proved by a preponderance of the evidence, indeed, by clear and convincing evidence." Id. at 18. The Arbitrator stated, in this connection, that "[n]one of the [g]rievant's explanations to management investigators were consistent with known and proved facts." Id. The Arbitrator rejected the Union's argument that the Agency was required to prove its allegations beyond a reasonable doubt because, according to the Arbitrator, the grievant had never been charged with a crime. On the same basis, the Arbitrator rejected the Union's argument that the Agency had violated the grievant's rights under Miranda. Moreover, with regard to the Union's argument regarding the grievant's rights under Weingarten, the Arbitrator found no evidence that the grievant had been denied representation.

The Arbitrator also concluded that a 14-day suspension was reasonable and that the Agency had not committed harmful error which would warrant reversal of the suspension. The Arbitrator found that the Agency violated Article 3.5.E of the parties' agreement by failing to place all relevant records in the grievant's disciplinary file. However, according to the Arbitrator, the Union failed to demonstrate that it was prejudiced by the Agency's violation. The Arbitrator noted that the Agency timely provided the Union with copies of all documents and records that the Agency used in determining the grievant's discipline.

Finally, the Arbitrator found that the Union failed to established that the Agency's attempt to use a note-taker at the grievant's oral reply hearing violated the parties' agreement or applicable law. In particular, the Arbitrator found that the Union failed to demonstrate that the parties had a binding understanding or past practice prohibiting the use of a note-taker at a oral reply. The Arbitrator further found that, even assuming that the grievant's contractual rights had been violated, the Union had failed to establish that the violation constituted harmful error requiring reversal of the suspension.

For the foregoing reasons, the Arbitrator denied the grievances.

III. First Exception

A. Positions of the Parties

The Union asserts that the award is contrary to law, rule, and regulation because the Arbitrator erred in applying the harmful-error rule to the two grievances. The Union argues that, consistent with Authority decisions, the harmful-error rule does not apply to suspensions of 14 days or less. The Union also argues that the Arbitrator failed properly to apply the harmful-error rule as it is applied by the Merit Systems Protection Board (MSPB).

The Agency contends that the Union's exception provides no basis for finding the award deficient.

B. Analysis and Conclusions

The Authority has repeatedly held that the harmful-error rule does not apply to suspensions of 14 days or less. For example, U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 38 FLRA 337, 339 (1990). That is, arbitrators are not bound by, and are not required to apply, in such cases the harmful-error rule as it is applied by the MSPB. For example, 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) (Randolph Air Force Base).

However, nothing in law, rule, or regulation precludes an arbitrator from applying the harmful-error rule in cases that do not mandate its application. For example, American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Odgen Logistics Center, Hill Air Force Base, Utah, 45 FLRA 424, 427 (1992). Consequently, the Union's argument that the Arbitrator applied the rule in a case where its application was not required provides no basis for finding the award deficient. In this regard, as noted previously, the Union argued to the Arbitrator that the Agency had committed harmful error.

We also reject the Union's contention that the award is deficient because the Arbitrator did not properly apply the harmful-error rule. The Union has not established that, as application of the harmful-error rule was not required in this case, the Arbitrator was obligated to apply that rule as it would be applied by the MSPB.

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 disciplinary actions where application of the harmful-error rule is not required, such as the one in this case, "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." The Arbitrator determined that the grievant's 14-day suspension could be reversed based on a violation of the parties' agreement only if the Union demonstrated that such violation substantially prejudiced the grievant's rights. The Union's argument to the contrary is an attempt to relitigate the merits of the grievance before the Authority and constitutes mere disagreement with the Arbitrator's evaluation of evidence, his interpretation of the agreement, and his findings and conclusions based thereon. As such the argument provides no basis for finding the award deficient. For example, Randolph Air Force Base, 40 FLRA 953, 957 (1991).

IV. Second Exception

A. Positions of the Parties

The Union asserts that the Arbitrator's award fails to draw it essence from Article 3.5.E of the parties' agreement because the Arbitrator was required to sustain the grievance on the basis of the Agency's violation of that provision. The Union also contends that, by sustaining the Agency's attempt to use a note-taker at the oral reply, the award fails to draw its essence from Article 24.9 of the agreement.(3)

The Agency argues that the "contractual basis" for the Union's exception "cannot even be rationally inferred" from the parties' agreement. Opposition at 2.

B. Analysis and Conclusions

To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show 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 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. For example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma, 47 FLRA 735, 739 (1993) (Tinker).

The Union has not shown that the award is deficient under any of these tests. Although the Arbitrator concluded that the Agency had violated Article 3.5.E of the parties' agreement, the Arbitrator concluded also that the violation did not warrant setting aside the disputed suspension because the violation did not prejudice the grievant. We have no basis on which to conclude that, in this regard, the award is irrational, implausible, or in manifest disregard of the agreement. Accordingly, the Union has not demonstrated that the award fails to draw its essence from Article 3.5.E. See id. In our view, the Union's argument constitutes mere disagreement with the Arbitrator's determination that no remedy was warranted for the contract violation. As such, it provides no basis on which to find the award deficient. See U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 464 (1991).

The Union also has not demonstrated that the award fails to draw its essence from Article 24.9 of the parties' agreement. The Arbitrator found specifically that the Union failed to demonstrate the existence of an agreement or practice which would preclude the Agency from using a note-taker. The record before us provides no basis on which to conclude that the Arbitrator's interpretation of the agreement is irrational, implausible, or otherwise deficient. Accordingly, this exception provides no basis for finding the award deficient. See, for example, Tinker, 47 FLRA at 739.

V. Third Exception

A. Positions of the Parties

The Union contends that the Arbitrator exceeded his authority by framing the issues before him as including application of the harmful-error rule.

The Agency claims that the Union's "bare allegation" that the Arbitrator exceeded his authority does not demonstrate that the award is deficient. Opposition at 2.

B. Analysis and Conclusions

An arbitrator exceeds his or her authority when, among other things, the arbitrator fails to resolve an issue submitted to arbitration or issues an award that exceeds the scope of the matter submitted to arbitration. For example, Tinker, 47 FLRA at 741. However, in the absence of a stipulation by the parties, an arbitrator's formulation of the issues to be resolved is accorded substantial deference. For example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 47 FLRA 819, 830 (1993).

In this case, the parties did not stipulate the issues to be resolved. Moreover, the issues, as formulated by the Arbitrator, are fully consistent with those identified by the parties in arbitration and the award is responsive to the issues as the Arbitrator formulated them. In these circumstances, the Union has not demonstrated that the Arbitrator exceeded his authority by the manner in which he framed, and resolved, the issues. See id. at 830-31.

VI. Fourth Exception

A. Positions of the Parties

The Union contends that the Arbitrator denied the Union a fair hearing by failing to notify the parties that the harmful-error rule was at issue. The Union also contends that the Arbitrator denied the Union a fair hearing by receiving into the record certain documents, by permitting testimony regarding those documents, and by relying on those documents in the award. The Union claims that the Arbitrator was required to exclude the documents and the testimony concerning them because the Agency failed to include the documents in the grievant's disciplinary file, as required by Article 3.5.E of the parties' agreement.

The Agency asserts that "[a]t all times leading up to the hearing the Union knew that the Agency intended to present its case in reliance on the proposition that there was no harmful error committed by the Agency . . . ." Opposition at 3-4.

B. Analysis and Conclusions

The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing. See U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103 (1991). However, an arbitrator has considerable latitude in the conduct of a 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 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) (Defense Mapping Agency). Specifically, the liberal admission by arbitrators of testimony and evidence is a permissible practice. See id.

The Union has not established that the Arbitrator's consideration of the harmful-error rule or the Arbitrator's acceptance of the disputed documents prevented the Union from presenting its case in full to the Arbitrator or denied the Union a fair hearing. We note again, in this connection, that the Union itself argued that the Agency had committed harmful error. See Award at 14 (Arbitrator set forth Union's argument that "the Agency's failure to comply with Article 3.5.E constitutes a harmful error and requires nullification of the disciplinary action."). Accordingly, we conclude that this exception provides no basis for finding the award deficient. See Defense Mapping Agency, 44 FLRA at 109.

VII. Fifth Exception

A. Positions of the Parties

The Union claims that the Arbitrator was biased. The Union asserts that "the most prevailing suggestion of biased conduct by the Arbitrator was his failure to provide notice of the harmful[-]error issue and his failure to suppress the Agency's case-in-chief after sustaining a contractual violation which required him to do so." Exceptions at 15. The Union also claims that the Arbitrator's decision to sustain the Agency's attempt to use a note-taker at the grievant's oral reply "strongly suggests that the Arbitrator was biased and that the award was procured by undue means." Id. at 20.

According to the Agency, this Union exception "defies explanation." Opposition at 4.

B. Analysis and Conclusions

The Authority will find an award deficient when the award was procured by improper means, when there was partiality on the part of the arbitrator, or when the arbitrator engaged in misconduct that prejudiced the rights of a party. For example, 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) (Air Force).

As was the case in Air Force, the Union's exception in this case "is totally devoid of any substantiation that the Arbitrator was biased[.]" Id. Accordingly, the exception provides no basis for finding the award deficient. Id.

VIII. Sixth Exception

A. Positions of the Parties

The Union claims that, "since the [grievant's] supervisors who conducted the investigation did not advise the grievant of Miranda rights at any time prior to questioning, the Arbitrator's use of such investigatory statements to discredit the grievant's credibility . . . violates the law and the agreement." Exceptions at 15.

The Agency claims that this exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence before him.

B. Analysis and Conclusions

The Union offers no support for its argument that, in the circumstances of this case, the Agency was required to advise the grievant of rights under Miranda. We note, in this regard, that the Union does not dispute the Arbitrator's finding that the grievant was never charged with a criminal offense. Similarly, the Union's claim that the Arbitrator's conclusions regarding the grievant's credibility violate law is completely unsubstantiated. Accordingly, this exception provides no basis for finding the award deficient.

IX. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union relied on the portion of the notice of proposed suspension which provided, in pertinent part:

The seriousness of your action is demonstrated in Title 18, U.S. Code, Section 1001: Whoever, in any manner . . . makes any false . . . statements or representations . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.

Award at 11.

2. Article 3.5.E provides:

Other than records that are exempt, any record that has not been disclosed to an employee on a timely basis and placed in his/her SF-7B Extension File cannot be used in a disciplinary or adverse