49:1656(152)AR - - SBA, Charlotte District Office, Charlotte, NC and AFGE Local 3841 - - 1994 FLRAdec AR - - v49 p1656



[ v49 p1656 ]
49:1656(152)AR
The decision of the Authority follows:


49 FLRA No. 152

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. SMALL BUSINESS ADMINISTRATION

CHARLOTTE DISTRICT OFFICE

CHARLOTTE, NORTH CAROLINA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3841

(Union)

0-AR-2583

_____

DECISION

July 22, 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 Michael Jay Jedel 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 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 loan servicing assistant in the Charlotte District Office. She received a 5-day suspension for insubordination and neglect of duty. The discipline resulted from her conduct and performance during an assignment relating to the completion of Quality Status Reports or "1175s" in September 1992. Award at 3.

On or about September 3, 1992, the Atlanta Regional Office notified the Charlotte District Office that a problem had developed with the mailing of 1175 forms to various banks. Some of the banks had not received the forms while others had received incorrect ones. In view of this problem, the Atlanta Regional Office directed the Charlotte District Office to obtain "1175 information" that would be entered into the Agency's computer system as soon as possible. Id. A meeting was held on September 3 to advise employees of their assigned duties relating to this project. The grievant did not attend the meeting as she was out of the office on sick leave. When the grievant returned to work, she was advised of the assignment.

The grievant's conduct, which resulted in the suspension, consisted of three infractions. According to the Arbitrator, on one occasion, the grievant stated to a supervisor that she would not make telephone calls to the banks, that the assignment was not part of her normal duties, and that she did not have written instructions to call the banks. On another occasion, the grievant stated to another supervisor that she "did not care[]" that the Atlanta Regional Office would telephone to ascertain the progress of the assignment. Id. at 5. The third infraction involved comments made to and behavior toward another employee working on the assignment. In reaching its decision that a 5-day suspension was an appropriate level of discipline in this case, the Agency relied on a letter of reprimand dated September 21, 1990, as a prior disciplinary action within the progressive disciplinary system.

A grievance was filed over the 5-day suspension and, when the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:

Whether or not the Agency could properly reply [sic] on a letter of reprimand dated September 21, 1990 as a prior disciplinary action within the step disciplinary process used by the Agency in determining disciplinary action in the instant matter? In either case, whether there was just and sufficient cause for the five (5) day suspension of the grievant? And, if not, what shall be the remedy?

Id. at 2.

First, the Arbitrator found that the 5-day suspension was for just and sufficient cause. In reaching this result, the Arbitrator concluded that "the grievant was disrespectful and insubordinate" in her statements to two supervisors. Id. at 18. The Arbitrator found that the record in this case, including all the documents, exhibits, testimony, and demeanor of witnesses, established that the grievant approached the work assignment in a "constantly challenging, questioning, combative manner, inappropriate to the need at hand." Id. As to the third infraction committed by the grievant, the Arbitrator found it unnecessary to determine whether it supported the suspension. In this regard, the Arbitrator concluded that "the proven charges of insubordination and neglect of duty are sufficient to justify the disciplinary action taken[.]" Id. at 19.

The Arbitrator specifically rejected the Union's contention that the 5-day suspension constituted disparate treatment relative to another employee who was given a period to improve after being informed that his performance was unacceptable, rather than being given a disciplinary suspension. The Arbitrator found that the Agency was justified in disciplining the grievant in a different manner than the other employee because the grievant's "poor performance" was "compounded and exacerbated by the demonstrated insubordinate behavior." Id. at 20. The Arbitrator also found no support for other arguments that were "suggested or implied by the Union in the grievance file . . . ." Id. The Arbitrator referred specifically to claimed violations of various Federal laws. The Arbitrator found that the record did not establish that "the grievant's statutory rights or protection under any of these laws [had] been violated." Id. at 21. Additionally, the Arbitrator found no evidence of Union animus.

Next, the Arbitrator found that the Agency properly relied on the September 21, 1990, letter of reprimand in imposing the 5-day suspension. In this connection, the Arbitrator found that under Article 38, Section 6.a. of the parties' collective bargaining agreement, the letter of reprimand could be considered in subsequent discipline for a 2-year period.(*) The Arbitrator determined that the grievant's misconduct occurred in early September 1992, which was within two years after issuance of the letter of reprimand.

Accordingly, the Arbitrator denied the grievance and rendered the following award:

The Agency could properly reply [sic] on a letter of reprimand dated September 21, 1990 as a prior disciplinary action within the step disciplinary process used by the Agency in determining disciplinary action in the instant case. There was just and sufficient cause for the five (5) day suspension of the grievant. Therefore the grievance is denied.

Id. at 25 (emphasis in original).

III. First Exception

A. Positions of the Parties

1. Union

The Union contends that the award is deficient because it is based on "gross mistake of fact[.]" Exceptions at 1. Specifically, the Union disputes certain findings and statements of the Arbitrator. For example, the Union argues that the Arbitrator erred in finding that the grievant sought instructions for the 1175 assignment in writing. The Union maintains that record testimony indicates that the grievant actually sought only clarification of the instructions in writing. In another example, the Union claims that the Arbitrator mistakenly found that the grievant previously had filled out 1175 forms when testimony indicated that the grievant previously had made only corrections on 1175 forms.

2. Agency

The Agency maintains that the Union has not established that the Arbitrator's disputed findings were clearly erroneous. The Agency adds that, even if these findings were erroneous, the Union has failed to establish that, but for the incorrect findings, the Arbitrator would have reached a different result.

B. Analysis and Conclusions

We construe the Union's contention that the award is based on gross mistake of fact as a claim that the award is based on nonfact. To establish that an award is based on a nonfact, 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 by the arbitrator. For example, U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). An arbitration award will not be found deficient on this basis if the appealing party merely disputes an arbitrator's findings of fact. Id. In reviewing awards alleged to be deficient because they are based on a nonfact, the Authority applies the limitations recognized by the Federal courts in reviewing arbitration awards in the private sector, and we apply the principles of the Supreme Court in generally refusing to disturb the factual findings and determinations of arbitrators in the Federal sector. Id. at 594. Consequently, exceptions that constitute nothing more than disagreement with an arbitrator's factual findings and determinations on disputed or ambiguous evidence provide no basis for finding an award deficient because it is based on a nonfact.

In this case, the Arbitrator resolved various disputed facts with respect to the method and manner in which the grievant was apprised of her work assignment and other aspects of her participation in the assignment. Although the Union disputes certain arbitral findings and statements, the Union has not established that any of the disputed findings or statements are clearly erroneous or were central to the award. Therefore, the Union has not demonstrated that the award is based on nonfact. See, for example, U.S. Department of the Army, U.S. Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 49 FLRA 454, 458 (1994). Accordingly, this exception provides no basis for finding the award deficient.

IV. Second Exception

A. Positions of the Parties

1. Union

The Union contends that the award is deficient because the conclusion reached by the Arbitrator "is not supported by the evidence presented during the hearing[.]" Exceptions at 1. In addition, the Union contends that the Arbitrator improperly relied on the grievant's demeanor in reaching his conclusions and made incorrect credibility determinations with respect to the testimony of various witnesses at the arbitration hearing.

In support of its contentions, the Union maintains that the Arbitrator erroneously "discounted the [g]rievant's position, when management's own witnesses and exhibits supported the testimony and case of the [g]rievant[.]" Id. In this regard, the Union cites numerous examples of alleged errors by the Arbitrator. For example, the Union argues that the Arbitrator erred in failing to credit the grievant's testimony that she followed the instructions provided by her supervisors for completing the 1175 forms. The Union also argues that the Arbitrator erred in finding that the suspension of the grievant did not constitute disparate treatment relative to another employee who was not disciplined for unacceptable performance. Finally, the Union maintains that the Arbitrator erred in failing to find that certain Agency witnesses were not credible when their testimony contained numerous inconsistencies.

2. Agency

The Agency contends that this exception provides no basis for finding the award deficient because it is nothing more than disagreement with the Arbitrator's evaluation of the evidence and the credibility and weight given to the testimony of witnesses. The Agency also asserts that the Arbitrator had considerable latitude in the conduct of the hearing.

B. Analysis and Conclusions

First, we reject the Union's contentions that the Arbitrator arrived at conclusions not supported by the record, failed to accord certain weight to the evidence, and made incorrect findings with respect to the grievant's demeanor and witnesses' credibility. 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, and is an attempt to relitigate the case before the Authority. As such, this exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, 499-500 (1992); 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, 285-86 (1992) (U.S. Department of the Air Force); 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) (Tinker Air Force Base).

Second, we construe the Union's claim that the Arbitrator disregarded the evidence presented at the hearing as an assertion that the Arbitrator failed to conduct a fair hearing. Such an exception must be rejected. 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, 105-07 (1991). However, arbitrators have considerable latitude in the conduct of the 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 the Army, Army Corps of Engineers, Mobile, Alabama and National Federation of Federal Employees, Local 561, 46 FLRA 968, 972 (1992).

We conclude that the Union has not demonstrated that the Arbitrator denied it a fair hearing. In particular, the Union 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 contentions constitute mere disagreement with the Arbitrator's evaluation of the evidence and testimony presented at the hearing and disagreement with his credibility determinations. Such assertions provide no basis for finding the award deficient. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1042 (1991); U.S. Department of the Air Force, Griffiss Air Force Base, New York and American Federation of Government Employees, Local 2612, 39 FLRA 471, 474-75 (1991).

V. Third Exception

A. Positions of the Parties

1. Union

The Union contends that the award is deficient because the Arbitrator's failure to base the award on the evidence "demonstrated a lack of fidelity to the obligation of an arbitrator to decide disputes based on the record before him." Exceptions at 1.

2. Agency

The Agency maintains that the Union's exception contains "veiled innuendos" that the Arbitrator's findings and conclusions were tainted by bias. Opposition at 17. The Agency argues, however, that the Union has not provided support for its claim that the Arbitrator was biased.

B. Analysis and Conclusions

We construe the Union's contention as a claim that the Arbitrator was 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 Command, 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 no basis on which to sustain the grievance. There is no evidence that this conclusion did not result from a neutral assessment of the facts presented to him. In our view, the Union's contention constitutes mere disagreement with the Arbitrator's findings, reasoning, and conclusions, and is an attempt to relitigate the matter before the Authority. This exception provides no basis for finding the award deficient. See, for example, U.S. Office of Personnel Management, Central Office and American Federation of Government Employees, Local 32, 44 FLRA 287, 292 (1992).

VI. Fourth Exception

A. Positions of the Parties

1. Union

The Union contends that the award is deficient because the Arbitrator did not "impose the burden of proof on the [Agency], as is required by judicial standards." Exceptions at 1.

2. Agency

The Agency contends that the Union has not shown that the Arbitrator was required to apply a specific burden of proof. The Agency argues, in this regard, that the parties' agreement does not prescribe a specific standard of proof and that the parties did not agree at the arbitration hearing to any particular standard of proof.

B. Analysis and Conclusions

The Authority has repeatedly held that unless a specified standard of proof is required by law or the parties' agreement, arbitrators have the authority to establish whatever standard they consider appropriate, and we will not find an award deficient on this basis. For example, 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 (1992) (National Memorial Cemetery); U.S, Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 412 (1991) (Office of Hearings and Appeals); U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 222 (1990) (Naval Aviation Depot). Furthermore, unless otherwise provided, establishing the standard encompasses specifying which party has the burden of proof under the established standard. See National Memorial Cemetery, 45 FLRA at 1171; Office of Hearings and Appeals, 39 FLRA at 412; Navy Aviation Depot, 36 FLRA at 222.

In this case, it is unclear whether the Arbitrator, in fact, placed the burden of proof on the Union. In any event, the Union has failed to demonstrate that law, governing regulation, or the parties' agreement required the Arbitrator to place the burden of proof on the Agency. Consequently, the Union's contention provides no basis for finding the award deficient.

VII. Fifth Exception

A. Positions of the Parties

1. Union

The Union contends that the award is deficient because the Arbitrator "exceeded the scope of authority on the issues to be decided . . . ." Exceptions at 1. Specifically, the Union notes that the Arbitrator "focused on" and drew conclusions from the grievant's leave status on September 3, 1992, despite the fact that this matter had not been addressed by the parties during the grievance process. Id. at 10. The Union also claims that the Arbitrator introduced issues relating to whether the suspension of the grievant violated various Federal laws. The Union asserts that it "did not address any of these issues" and "cannot understand why the [A]rbitrator elected to expound upon issues not placed before him." Id. at 19. The Union argues that the issues before the Arbitrator were limited to those stipulated by the parties.

2. Agency

The Agency maintains that the Arbitrator properly addressed the issue of whether the suspension of the grievant violated various Federal laws. The Agency notes, in this regard, that such contentions were alleged in the grievance.

B. Analysis and Conclusions

An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration. International Association of Firefighters, Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama, 43 FLRA 1012, 1023 (1992). In our view, the Union has not established that the Arbitrator addressed an issue not before him when he addressed the matter of whether the grievant's suspension violated various Federal laws.

At issue before the Arbitrator was whether there was just and sufficient cause for the 5-day suspension of the grievant. Nothing in the stipulated issue limited the scope of the Arbitrator's inquiry in determining whether the suspension was properly imposed. For example, the pa