49:1096(103)AR - - Federal Employees Metal Trades Council & Navy, Mare Island Shipyard, Vallejo, CA - - 1994 FLRAdec AR - - v49 p1096



[ v49 p1096 ]
49:1096(103)AR
The decision of the Authority follows:


49 FLRA No. 103

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL EMPLOYEES METAL TRADES COUNCIL

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

VALLEJO, CALIFORNIA

(Agency)

0-AR-2542

_____

DECISION

May 25, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to a supplemental award of Arbitrator Charles A. Askin 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 determined that, although the Agency committed errors in conducting a reduction-in-force (RIF) which resulted in the grievant's separation from employment, the grievant was not entitled to reinstatement and backpay. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Awards

The grievant was employed as a conventional machinist when the Agency conducted a RIF in 1990 which resulted in the grievant's separation. Prior to the RIF, the Agency requested and received permission from the Department of the Navy to establish separate competitive levels(1) for conventional and nuclear machinists. The Agency based its request on, among other things, its asserted need to avoid the undue interruption to the Agency's nuclear operations which, it claimed, would result from the large number of nuclear machinists who would be displaced by the RIF. The Agency conducted the RIF and the grievant was separated from employment.

A. Interim Award

The grievant filed a grievance alleging that the Agency committed certain errors in conducting the RIF. When the grievance was unresolved, it was submitted to arbitration, where the Arbitrator framed the issue as follows:

Whether the 1990 Reduction-in-Force at Mare Island Naval Shipyard was properly conducted with respect to Grievant . . .[] and if not, what is the appropriate remedy?

October 4, 1992, Award at 2 (hereinafter Interim Award).

The Arbitrator found that the establishment of separate competitive levels "was not proper within the meaning of the RIF regulations."(2) Id. at 20. However, crediting the testimony of an Agency witness, the Arbitrator determined that a "mock RIF" conducted by the Agency showed that the grievant would have been separated even if one competitive level had been used. Id. at 13. Therefore, the Arbitrator concluded that the grievant was not entitled to reinstatement.

The Arbitrator also found that the Agency had misclassified another employee and, as a result, failed to place the other employee in the grievant's competitive level. However, the Arbitrator determined that the effect of the misclassification on the grievant's separation was unknown. Accordingly, the Arbitrator remanded the grievance to the parties to determine whether the misclassification affected the grievant's separation during the RIF. The Arbitrator retained jurisdiction in the event the parties were unable to reach agreement on that issue.

B. Supplemental Award

As the parties were unable to resolve the misclassification issue, the Arbitrator held another hearing and, on October 9, 1993, issued another award (hereinafter Supplemental Award).

At the second hearing, the Union renewed its argument that, as a result of the Agency's establishment of two competitive levels during the RIF, the grievant was improperly separated, and the Arbitrator concluded that the parties desired additional "arbitral review" of that issue. Supplemental Award at 2. In so concluding, the Arbitrator noted that, although he had "already ruled upon that issue in the [Interim award,]" the Agency did not object to the Union's attempt to relitigate the issue and, in fact, produced evidence to rebut the Union's arguments. Id.

Based on the evidence and arguments presented at the second hearing, the Arbitrator again concluded that "[even] if a single competitive level had been used . . . [the] Grievant still would have been separated[.]" Id. at 4. In addition, the Arbitrator found, based on Agency exhibits, that the misclassification of the other employee had no effect on the grievant's separation. Accordingly, the Arbitrator reaffirmed his original findings that, although the Agency committed errors in conducting the RIF, the evidence did not establish that "but for" those errors, the grievant would have been retained and, as a result, the Arbitrator again concluded that the grievant was not entitled to reinstatement. Id. at 7.

III. Preliminary Matter

Unless an arbitrator retains jurisdiction after issuance of an award, the arbitrator is without authority to take any further action with respect to that award without the joint request of the parties. See, for example, U.S. Department of Defense Dependents Schools and Overseas Education Association, 49 FLRA 120 (1994). In this case, the Arbitrator found that the Agency did not object to the Union's attempt in the second hearing to relitigate the issue regarding the Agency's use of separate competitive levels and that the Agency introduced evidence regarding that issue. Moreover, the Agency does not now oppose the Union's exceptions to the Supplemental Award(3) insofar as it addresses that issue. In these circumstances, we conclude that the Union's exceptions regarding that issue are properly before us.

IV. First Exception

The Union argues that the Supplemental Award is deficient because it is based on fraud. In this regard, the Union asserts that the Agency knowingly submitted with its request to the Department of the Navy to establish separate competitive levels, a false nuclear machinist job description, a false statement of qualifications, and a false description of the RIF's impact on operations. The Union also asserts that Agency witnesses provided perjured testimony regarding the first mock RIF. The Union contends that the testimony of an Agency witness who testified that the grievant would have been separated even if only one competitive level had been used was false, and that the mock RIF did not exist.

A. Analysis and Conclusions

Under section 7122(a)(2) of the Statute, the Authority will find an award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. Federal courts will find an arbitration award deficient in the private sector when it is established that the award was obtained by fraud. See National Association of Government Employees, Local R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 34 FLRA 792, 797 (1990) (Langley Air Force Base). Among other things, misconduct by representatives of a party, such as the use of perjured testimony or misrepresentations to an arbitrator, constitutes obtaining an award by fraud. Id. However, in order to find an award deficient on this basis, the fraud: (1) must not have been discoverable on the exercise of due diligence prior to arbitration; (2) must materially relate to an issue in the arbitration; and (3) must be established by clear and convincing evidence. Id.

We reject the Union's unsupported allegations that the Agency submitted false documents to the Department of the Navy, and that an Agency witness committed perjury in testifying about the grievant's retention status. The Union has not provided copies of the alleged false documents or the hearing transcripts.(4) Consequently, we conclude that the exception fails to establish that the award was obtained by fraud. See Langley Air Force Base, 34 FLRA at 797.

V. Second Exception

The Union argues that the Arbitrator failed to conduct a fair hearing. In this connection, the Union asserts that the Agency refused to provide a copy of the Agency's mock RIF. The Union also alleges that the Arbitrator refused to rule on all of the issues before him. Although not entirely clear, the Union appears to assert that the Arbitrator failed to rule on its alternative argument that, even if separate competitive levels were proper, the grievant would have exercised retreat rights(5) and would not have been separated. The Union asserts that "this disparative [sic] treatment issue was not addressed or ruled upon even though raised by [g]rievant." Exceptions at 17.

A. Analysis and Conclusions

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. For example, American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1373 (1993) (Federal Medical Center, Rochester). It must also be demonstrated that the refusal to hear or consider pertinent and material evidence affected the fairness of the proceeding as a whole. See 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). However, the fact that an arbitrator's opinion does not mention an issue does not establish that an award is deficient or that the arbitrator did not address and rule on the issue. For example, 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, there is no general statutory obligation to set forth any specific findings or rationale to support an award denying a grievance.

We conclude that the Union has not demonstrated that the Arbitrator failed in any way to conduct a fair hearing. We note, in this connection, that although the Arbitrator sustained the Union's contention that the Agency improperly established separate competitive levels, he also found that the Union did not dispute the Agency's argument that the grievant would have been separated even if only one competitive level had been established. In our view, the Union's arguments constitute mere disagreement with the Arbitrator's evaluation of the evidence and his findings and conclusions thereon. As such, the exception provides no basis for finding the award deficient. See Federal Medical Center, Rochester, 47 FLRA at 1374.

Further, with respect to the Union's assertion that the Agency failed to provide a copy of its mock RIF, the record indicates that the Agency presented the mock RIF as evidence at the first arbitration hearing in this case. The record further reveals that the Union fully litigated the issues relating to the mock RIF and, as noted above, did not dispute the Agency's position that the mock RIF demonstrated that the grievant would have been separated even if the Agency has used only one competitive level. Indeed, the Arbitrator determined that the Union's only argument against the mock RIF was that the evidence was "'speculative[.]'" Interim Award at 20. Consequently, in our view, the Union's contention is without merit and provides no basis for finding the award deficient.

VI. Third Exception

The Union argues that the award is deficient because the Arbitrator was biased. As evidence of the Arbitrator's bias, the Union alleges that, at another arbitration hearing conducted by the Arbitrator, the Arbitrator permitted the Agency's attorney to "s[i]t in the back with a portable typewriter and . . . type loud enough to cause the [g]rievant therein to object to the distracting noise." Exceptions at 7. Further, the Union maintains that, during the first hearing on the instant grievance, the Arbitrator stated that he would grant the Agency's attorney "more leeway . . . because . . . this was her first case." Id. at 8.

A. 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 a party. See U.S. Department of Health and Human Services, Social Security Administration, Region X, Office of Hearings and Appeals and American Federation of Government Employees, Local 3937, 49 FLRA No. 65, slip op. at 9 (1994) (SSA, Region X).

As was the case in SSA, Region X, the Union's unsupported exception fails to support a finding that the Arbitrator was biased under any of the tests set forth above. Accordingly, the exception provides no basis for finding the award deficient. See id.

VII. Fourth Exception

The Union points out that, in the Supplemental Award, the Arbitrator stated that "'[t]he issue of whether [the misclassified employee] would have been separated (not [g]rievant) if [he] would have been classified properly . . . was remanded to the parties.'" Exceptions at 31. The Union also points out that, in the Interim Award, the Arbitrator framed the issue on remand as "'whether [the grievant] would have been separated if [the misclassified employee]'" had been placed in the correct competitive level. Id. The Union claims that the Arbitrator misstated the issue in the Supplemental Award and is therefore incompetent.

A. Analysis and Conclusions

We construe the Union's contention as an allegation that the Arbitrator exceeded his authority. 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, SSA, Region X, 49 FLRA No. 65, slip op. at 7.

Although the Arbitrator did not use the same wording when he framed the remand issue in each award, it is clear that issue was the same, despite the difference in phrasing in the interim and supplemental awards. Moreover, the issue, as formulated by the Arbitrator, is fully consistent with the issue identified by the parties and the award is responsive to the issue as formulated by the Arbitrator. In these circumstances, the Union has not demonstrated that the Arbitrator exceeded his authority by the manner in which he framed, and resolved, the issue. See id.

VIII. Fifth Exception

The Union argues that the award is based on "[e]rrors of law[.]" Exceptions at 3. In particular, the Union asserts that the grievant was entitled to notice of the Agency's mock RIF and that, in the mock RIF, the Agency erroneously included employees who retired as a result of the actual RIF. The Union also alleges that the Arbitrator "misapplied the law regarding the burden of proof." Id. at 20. In this connection, the Union maintains that, although it "had no burden to present evidence," the Agency failed to prove by a preponderance of the evidence that the grievant would have been separated even if the misclassification error had not occurred. Id. Finally, the Union asserts, without elaboration, that the award is based on a non-fact.

A. Analysis and Conclusions

We reject the Union's exception that the award is contrary to law, rule, or regulation. The Arbitrator considered relevant regulatory provisions pertinent to the RIF, as well as all evidence submitted by both parties, and concluded that the grievant would have been separated even if the Agency used separate competitive levels. The Union has failed to demonstrate that the Arbitrator's findings in this regard are contrary to any law, rule, or regulation. Moreover, unless a specific burden of proof is required by law or the parties' 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 Federal Medical Center, Rochester, 47 FLRA at 1373. Here, the Union has not established that the Arbitrator was required to apply any particular standard of proof to either party. In our view, the Union's contentions constitute nothing more than disagreement with the Arbitrator's findings of fact and conclusions and are an attempt to relitigate this case before the Authority. As such, they provide no basis for finding the award deficient. See, for example, National Air Traffic Controllers Association, MEBA/AFL-CIO and U.S. Department of Transportation, Federal Aviation Administration, Billings, Montana, 47 FLRA 638, 645 (1993).

We also reject the Union's exception that the award is based on a nonfact. To establish that an award is deficient on this ground, 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 Federal Medical Center, Rochester, 47 FLRA at 1372. In this case, the Union has not identified any asserted nonfact and offers no elaboration on its assertion. Consequently, the Union has failed to establish that the award is deficient. See id.

IX. Decision

The Union's exceptions are denied.




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

1. A competitive level is a group of positions in the same grade and classification series that have similar duties. Federal Personnel Manual Supplement (FPM Supp.) 353-1, Subchapter S2-1(f). During the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document, Summary Table at 7. FPM Supp. 351-1 has been provisionally retained in its entirety. See id.

2. The Arbitrator cited FPM Supp. 351-1, S3-3(c) & S2-1v.

3. As the Supplemental Awar