50:0073(14)AR - - VA Finance Center, Austin, TX and NFFE, Local 1745 - - 1994 FLRAdec AR - - v50 p73
[ v50 p73 ]
The decision of the Authority follows:
50 FLRA No. 14
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
December 22, 1994
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John F. Caraway 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 that, in part, sought the restoration of 125 hours of sick leave.
For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.(1)
II. Background and Arbitrator's Award
The dispute in this matter arose when the grievant's supervisor questioned the grievant's use of official time and denied portions of her official time requests. The Union filed a grievance asserting that management's denial of the requests for official time caused the grievant, the Union president, stress and mental anguish and resulted in her use of 125 hours of sick leave. When the dispute could not be resolved, it was submitted to arbitration.
The parties did not stipulate an issue to be resolved by the Arbitrator and there is no evidence in the award that the Arbitrator framed the issue. Instead, the Arbitrator stated that the dispute involved the grievant's claim for restoration of 125 hours of sick leave because the grievant's supervisor "allegedly denied [the grievant's] official time which caused her stress and necessitated her use of sick leave." Award at 1.
The Arbitrator found that the grievant's supervisor had the right, under Article 2, Section 4 of the parties' collective bargaining agreement, to be advised of the general purpose of the official time and of certain specific information so that the supervisor could make an informed decision on granting such time.(2) The Arbitrator concluded that the supervisor's requests for information regarding the nature of the grievant's need for official time did not constitute an unjustified or unwarranted personnel action.
The Arbitrator also found that the Agency did not violate Article 2, Section 4 of the agreement in its grant of official time to the grievant. The Arbitrator noted that while the Union's workload had increased, the section in which the grievant worked also had a heavy workload.
Finally, the Arbitrator found that the medical evidence failed to demonstrate a nexus between the grievant's alleged illness and the denial of her official time requests. Analyzing the issue of sick leave restoration as a claim under the Back Pay Act, 5 U.S.C. § 5596, the Arbitrator concluded that the grievant failed to show that she was the victim of an unjustified or unwarranted personnel action.
Accordingly, the Arbitrator denied the grievance.
A. Union's Contentions
The Union argues that the award is deficient because the Arbitrator failed to address all the issues surrounding the dispute between the parties. In this regard, the Union states that the grievance did not pertain to whether the Agency granted the grievant official time but, rather, raised several issues concerning the manner in which the grievant's supervisor granted official time. The Union claims that the "main issue[,]" which was never addressed, was whether the supervisor's attitude and the manner of granting official time "cause[d] the stress on the grievant that caused her to have to use official time after hours and eventually sick leave." Exceptions at 1.
Additionally, the Union argues that the Arbitrator ignored the testimony of one of the Union's witnesses that the grievant's personality changed as a result of the stress arising from her dealings with her supervisor over official time.
The Union requests that the case be remanded to the Arbitrator, or another arbitrator, to consider all the facts, testimony, and issues originally presented in the case. The Union also claims that the Arbitrator's fee was excessive and requests that any subsequent arbitral decision be covered by the original fee.
B. Agency's Opposition
The Agency contends that the Union's exceptions do not meet the requirements of section 2425.2(c) of the Authority's Rules and Regulations because: (1) the Agency argues that the Union failed to cite any references to the documentary evidence presented at the arbitration hearing to support its claim that the Arbitrator failed to address all the issues before him; and (2) all of the issues before the Arbitrator were fully addressed and supported in the award.
IV. Analysis and Conclusions
We conclude that the Union's exceptions are not procedurally deficient under our Rules and Regulations and provide no basis for finding the award deficient under section 7122(a) of the Statute.
A. The Exceptions Are Not Procedurally Deficient
We find that the Union's exceptions comply with section 2425.2(c) of the Authority's Rules and Regulations. That section requires that an exception be a self-contained document that contains "[a]rguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities[.]" In this case, the Union's exceptions adequately set forth the bases on which the award is allegedly deficient. In addition, the Union's exceptions incorporated its post-hearing brief to the Arbitrator and exhibits containing documents and citations to Authority precedent. Consequently, we reject the Agency's contention. See Department of Veterans Affairs, Waco, Texas and American Federation of Government Employees, Local 2571, 42 FLRA 1109, 1111 (1991); Department of the Army, Buffalo District, Corps of Engineers and American Federation of Government Employees, Local 2930, 34 FLRA 548, 549 (1990).
B. The Exceptions Do Not Demonstrate that the Award Is Deficient
First, we reject the Union's claims that the Arbitrator failed to consider all the issues raised in the grievance and failed to address the real issue in dispute. The parties did not stipulate the issue to be resolved by the Arbitrator. Rather, the Arbitrator characterized the nature of the dispute as involving the supervisor's alleged denials of the grievant's requests for official time. In the absence of a stipulation concerning the issue to be resolved at arbitration, arbitrators are accorded great deference in their formulation or, as here, their characterization of the issue. See, for example, U.S. Department of the Air Force, 2750th Air Force Base Wing (AFLC), Wright-Patterson Air Force Base, Ohio and International Association of Machinists and Aerospace Workers, Local 2333, 48 FLRA 3, 5 (1993).
Moreover, the Union has not supported its claim that the Arbitrator addressed only the amount of official time that ultimately was granted to the grievant. In its post-hearing brief to the Arbitrator, the Union argued that: (1) the grievant was harassed by her supervisor concerning the use of official time; (2) official time was not granted in accordance with the parties' agreement and past practice; (3) the grievant was required to work after hours on Union matters due to the denial of official time; and (4) management's harassment caused or contributed to the stress and mental anguish suffered by the grievant, thereby necessitating the use of sick leave. In our view, the Arbitrator addressed each of the issues raised by the Union.
Specifically, with respect to the first and second claims, the Arbitrator found that the supervisor's handling of the grievant's official time requests was reasonable, did not constitute a violation of the parties' agreement, and that the amount of official time granted exceeded the amount the Union claimed traditionally had been granted. As to the fourth claim, the Arbitrator concluded that the medical evidence presented failed to establish a nexus between the grievant's claimed illness and her official time requests. As to the third claim, the Arbitrator acknowledged that the grievant used some of her own time for representational purposes. Although the Arbitrator made no further findings or conclusions with respect to the third claim, the fact that an arbitrator does not specifically set forth findings with respect to a particular issue does not establish that the arbitrator failed to consider the issue and does not render the award deficient. See, for example, U.S. Department of the Air Force, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857, 35 FLRA 1295, 1296-97 (1990).
We construe the Union's contention that the award is deficient because the Arbitrator ignored the testimony of one of the Union's witnesses as an assertion that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient on this ground when it is established that: (1) an arbitrator refused to consider pertinent and material evidence; and (2) such refusal affects 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).
The Union has failed to establish that the Arbitrator did not consider the cited testimony in reaching his determination that there was no evidence to prove a nexus between the alleged management harassment over the grievant's requests for official time and her claimed illness. As such, the exception does not provide a basis for finding the award deficient. See id. at 244-45.
Finally, in light of our conclusion denying the Union's exceptions, there is no basis on which to grant the Union's request that this case be remanded or that the cost of any subsequent arbitral decision be covered by the Arbitrator's fee in this case.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Evidence in the record refers to an unfair labor practice charge, but does not indicate the disposition of that charge. There is no assertion that the grievance in this case involved the same issue as that raised in the charge such that the grievance could not be processed under section 7116(d) of the Statute.
2. The Arbitrator quoted Article 2, Section 4, which provides, in pertinent part:
Union representatives will be permitted a reasonable amount of official time to perform representational functions and functions related to contract administration. A union representative wishing to use official time will request permission from his/her immediate supervisor. Such permission will not be arbitrarily withheld. The supervisor