50:0396(60)AR - - AFGE, Local 1802 and SSA, Golden Teleservice Center, Golden, CO - - 1995 FLRAdec AR - - v50 p396
[ v50 p396 ]
The decision of the Authority follows:
50 FLRA No. 60
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
GOLDEN TELESERVICE CENTER
May 19, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator J. Kenneth Davies filed by the Union under section 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the exceptions.
The Arbitrator denied a grievance filed over the Agency's 7-day suspension of the grievant.
For the following reasons, 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
The grievant is a Telephone Service Representative (TSR) whose position requires him to receive calls from the public regarding Social Security benefits. Because the Agency determined that the grievant acted discourteously to callers on three calls, the Agency sent the grievant a letter informing him of a proposal to suspend him for 7 days. The letter stated that the action was a proposed decision, and that the grievant could challenge it within 10 calendar days. After the Agency failed to receive any response from the grievant, the Agency implemented the proposed 7-day suspension.
The grievant, after returning from suspension, initiated a formal grievance. The Agency and the Union subsequently met concerning the grievance, but the grievant did not attend that meeting. The matter was not resolved and was submitted to arbitration on the issue of whether the Agency suspended the grievant for just cause and in accordance with the parties' collective bargaining agreement.
The Arbitrator held that the 7-day suspension was for just cause and, therefore, no remedy was appropriate. The Arbitrator found that the grievant "seriously weaken[ed]" his case by his failure to respond orally or in writing to the proposed disciplinary action, and his failure to participate in a grievance meeting attended by representatives of the Agency and the Union. Award at 9. The Arbitrator stated that "[h]ad the Grievant responded in a timely way as provided for in the contract, the decision might be otherwise." Id. at 10. However, because of the grievant's "neglect of his responsibility," the Arbitrator concluded that the suspension was for just cause. Id.
III. Union's Exceptions
The Union argues that the award is deficient on four grounds. First, the Union contends that the award is based on a nonfact. Specifically, the Union contends that the Arbitrator based his decision on the erroneous assumption that the grievant was required to attend the grievance meeting referenced by the Arbitrator, and that, but for the Arbitrator's reliance on this erroneous assumption, his reasoning would have been otherwise. Second, the Union argues that the award fails to draw its essence from the parties' agreement because the Arbitrator added to the agreement the requirement that the grievant attend the grievance meeting. Third, the Union argues that the award "violates government[-]wide rules and regulations regarding the duty of fair representation pursuant to the [S]tatute[,] 5 USC 7114[,]" and violates "the grievant's rights to due process . . . ." Exceptions at 3. Finally, the Union argues that the Arbitrator improperly refused to admit into evidence a manager's notes regarding a meeting between management and the grievant concerning the charges for which the grievant was suspended, and improperly refused to permit the Union to call as a witness at the arbitration hearing the manager who made the notes.
IV. Analysis and Conclusions
It is well settled that, to establish that an award is based on a nonfact, a party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. 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 (1993).
The Union does not contest any of the Arbitrator's findings of fact. Instead, the Union asserts that the Arbitrator erroneously concluded that the grievant was required to attend the disputed grievance meeting. However, the Arbitrator did not conclude that the grievant was required to attend the grievance meeting. Rather, the Arbitrator merely found that if the grievant had responded to the proposed suspension letter and/or had attended the grievance meeting, he possibly could have strengthened his case and obtained a different result. The Arbitrator's conclusion that the suspension was for just cause resulted from his evaluation of the evidence presented and his interpretation of the parties' agreement and, as such, does not constitute a fact that can be challenged as a nonfact. E.g., National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 91-92 (1995). Accordingly, we deny this exception.
To demonstrate that an award is deficient because it fails to draw its essence from the parties' agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
The Union fails to satisfy any of these tests. Contrary to the Union's assertion, the Arbitrator did not interpret the agreement as requiring that the grievant attend the grievance meeting. As noted above, the Arbitrator found that if the grievant had responded to the proposed suspension letter and/or had attended the grievance meeting, he possibly could have strengthened his case and obtained a different result. The Union has not established that the Arbitrator's interpretation is deficient. Accordingly, we deny this exception.
C. Contrary to Law, Rule, or Regulation
The Union has provided no explanation of how the duty of fair representation set forth in section 7114 or the grievant's due process rights are implicated in this case. Accordingly, we deny this exception.
D. Fair Hearing
We construe the Union's argument that the Arbitrator failed to consider crucial evidence as an argument that the Arbitrator failed to provide a fair hearing. An award will be found deficient for failure to provide a fair hearing 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. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126-27 (1995). The Union has failed to make such a showing in this case.
The Union has not shown that the disputed notes and testimony would have been pertinent material or that the Arbitrator's failure to hear the testimony and admit the notes into evidence prejudiced the Union so as to affect the fairness of the hearing. We note that the manager's notes merely recount events which occurred prior to the Agency's proposal to suspend the grievant, and, contrary to the Union's contention, contained no material which would exculpate the grievant of the charges on which the Agency relied in suspending him. Moreover, apart from the Union's conclusory assertion, there is no basis on which to conclude that the manager's testimony about the events recounted in the notes would support the grievant's claim that he did not commit the offenses on which the Agency based his suspension. Accordingly, we deny this exception.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ During the pendency of this case, the Social Security Administration, previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency.