50:0236(41)AR - - NAGE, Local R1-109 and VA Medical Center, Newington, CT - - 1995 FLRAdec AR - - v50 p236
[ v50 p236 ]
The decision of the Authority follows:
50 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
March 10, 1995
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 Louis P. Pittocco 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 concerning an employee's suspension.
For the reasons set forth below, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
After the grievant's supervisor and another supervisor heard the grievant talking loudly and detected alcohol on his breath, an Agency physician examined the grievant, who admitted that he had drunk beer at lunchtime. The physician determined that the grievant could continue working. The grievant later attempted to discuss the matter with his supervisor, and when the supervisor refused to do so, the grievant suggested to the supervisor "that they settle it amongst themselves, man to man." Award at 3. When the supervisor refused, the grievant used profanity directed towards his supervisor.
The grievant was charged with violating Agency regulations concerning the use of intoxicants at work and insubordinate behavior by using insulting, abusive or obscene language directed at other personnel.(1) The Agency suspended the grievant for 5 days.
The Union filed a grievance over the suspension which was submitted to arbitration on the issue of whether the suspension was for just cause. The Arbitrator found that the grievant violated the Agency regulation covering the use of intoxicants by drinking beer during his shift. The Arbitrator further found that the grievant was clearly insubordinate in challenging his supervisor and in using profanity. Therefore, the Arbitrator concluded that the Agency had just cause to suspend the grievant, and he denied the grievance.
A. Union's Contentions
The Union asserts that the Arbitrator erred in finding that the grievant violated the Agency's regulation and that his error demonstrates that the Arbitrator was biased. Further, the Union contends that the Arbitrator erred by allowing the Agency to raise at the arbitration hearing the assertion that the grievant challenged his supervisor. Finally, the Union contends that the award is based on nonfacts because the Arbitrator's findings that the grievant was insubordinate and that he violated the Agency's regulations pertaining to alcohol are not in accordance with Authority and Merit Systems Protection Board precedent.
B. Agency's Opposition
The Agency contends that the Union's exceptions were untimely filed.(2) The Agency asserts that if the exceptions are timely, they should be denied because the award is consistent with law, rule and regulation.
IV. Analysis and Conclusions
The Union's contention that the Arbitrator misinterpreted Agency regulations does not demonstrate that the award is deficient under section 7122(a) of the Statute. The Union has not shown that the Arbitrator improperly concluded that, by drinking beer during his lunch hour, the grievant violated the regulation's prohibitions against reporting for duty while under the influence of intoxicants or becoming intoxicated or partaking of intoxicants while on duty. See American Federation of Government Employees, Local 1662 and U.S. Department of the Army, Fort Huachuca, Arizona, 43 FLRA 99, 101 (1991).
The Union also fails to establish that the Arbitrator was biased. To demonstrate that an award is deficient because of bias on the part of an arbitrator, a party must show, for example, that the award was procured by improper means, that there was partiality or corruption on the arbitrator's part, or that the arbitrator engaged in misconduct that prejudiced a party's rights. 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, 1371 (1993). The Union offers no substantiation for its conclusory allegations regarding bias. As such, the Union's argument provides no basis for finding the award deficient. See, for example, id. at 1371-72.
We construe the Union's contention that the Arbitrator allowed the Agency to raise an issue for the first time at the arbitration hearing as an assertion that the Arbitrator failed to conduct a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. See generally American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA No. 25, slip op. at 3 (1995). The Union has not demonstrated that, by permitting evidence as to the grievant's challenge to his supervisor in support of the charge of insubordinate behavior, when that challenge was not included in the notice of the charge of insubordination, the Arbitrator's action prejudiced the grievant in a manner that affected the fairness of the proceeding as a whole. Therefore, the Union has not demonstrated that it was denied a fair hearing.
Finally, in order to establish that an award is based on a nonfact, a party must show that the award is based on a clearly erroneous fact, but for which the arbitrator would have reached a different result. 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) (Lowry AFB). In this regard, the Arbitrator's conclusions that the grievant was insubordinate and that he violated the Agency's regulations pertaining to alcohol are not facts that can be challenged as nonfacts. These conclusions are a result of his application of the standards set forth in the Agency's regulations to the facts and circumstances of this case, but are not themselves facts. See, for example, U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Local 2552, 42 FLRA 890, 899 (1991). Moreover, even if those conclusions are facts, the Union has not established that they are clearly erroneous and, as such, has not demonstrated that the award is deficient. See Lowry AFB at 594. Finally, the Union has not demonstrated that the Arbitrator misapplied Authority precedent or that misapplication of precedent constitutes a basis for finding an award deficient on the ground of nonfact.
The Union's exceptions are denied.
The Agency's regulations provide in pertinent part as follows:
Section 820 (subsec. 0.735-20). OTHER CONDUCT ON THE JOB
. . . .
(B) Work Attitudes and Work Behavior. An employee shall live up to common standards of acceptable work behavior. The following are considered improper: . . . disrespectful conduct; use of insulting, abusive or obscene language to or about other personnel . . . .
Section 821 (subsec.0.735-21). STANDARDS OF CONDUCT IN SPECIAL AREAS
. . . .
(C) Use or Sale of [Intoxicants]
(1) An employee shall not use intoxicants in such manner that his work performance is adversely affected or his conduct becomes embarrassing to the [Agency].
(2) An [e]mployee shall not report for duty under the influence of intoxicants, or become intoxicated or [partake of intoxicants] while on dut[y]. . . .
Award at 2.
(If blank, the decision does not have footnotes.)
1. The pertinent portions of the Agency's regulations are set forth in an Appendix to this decision.
2. The Union's exceptions were timely filed. The Arbitrator's award was served on the Union by mail on August 13, 1994. Therefore, under sections 2429.21 and 2429.22 of the Authority's Regulations, any exception to the award had to be either postmarked by the U.S. Postal Service or received at the Authority no later than September 19, 1994. The Union's exceptions were postmarked by the U.S. Postal Service on September 16, 1994.