51:1496(121)AR - - AFGE Local 22 and Navy, Norfolk Naval Shipyard - - 1996 FLRAdec AR - - v51 p1496
[ v51 p1496 ]
The decision of the Authority follows:
51 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
July 3, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Herbert N. Bernhardt 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 Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator sustained the Agency's disciplinary action against the grievant for sexual harassment in the workplace, but reduced the penalty from a 1-day suspension without pay to a written reprimand. For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Arbitrator's Award
The employee grieved his 1-day suspension for sexual harassment of a female employee, claiming that his behavior was not improper.
The Arbitrator rejected the grievant's contention that his behavior was proper. However, crediting the testimony of various witnesses that the grievant was an agreeable person and conscientious worker whose record previous to the suspension was spotless, the Arbitrator determined that a reprimand was a more appropriate punishment. Accordingly, the Arbitrator ordered that the grievant's 1-day suspension without pay be reduced to a written reprimand and that the grievant receive back pay for 1 day.
III. Exceptions (*)
The Union contends that, as the evidence presented to the Arbitrator was weak, based on hearsay testimony, biased and lacked credibility, the Arbitrator's decision could not have been fairly rendered. The Union also contends that the Arbitrator exceeded his authority by imposing an inappropriate remedy. The Union maintains that if any penalty was sustained, it should have been "a letter of caution or a mild reprimand." Exceptions at 3.
IV. Analysis and Conclusion
A. The Union Received a Fair Hearing
We construe the Union's argument that the Arbitrator based his decision on hearsay testimony and biased evidence that lacked credibility as a claim that the Arbitrator failed to conduct a fair hearing.
The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing, for example, by refusing to consider pertinent and material evidence or by other actions which prejudice a party and 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 (1995). It is well established that an arbitrator has considerable latitude in conducting a hearing. National Air Traffic Controllers Association, Local NKT and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 49 FLRA 499, 505 (1994). The fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not provide a basis for finding an award deficient. Id. Additionally, disagreement with an Arbitrator's findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, provides no basis for finding an award deficient. American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 (1995).
The Union has not demonstrated that the Arbitrator refused to admit pertinent or material evidence. Instead, the exception offers the Union's interpretation of the evidence presented. Additionally, it is not apparent from the record that the Arbitrator's actions prejudiced the grievant or the proceedings in any way. The Union disagrees with the Arbitrator's determination regarding the relevance of the evidence. However, the liberal admission of testimony and evidence by an arbitrator is a permissible practice. U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 109 (1992). Accordingly, we deny this exception.
B. The Arbitrator Did Not Exceed His Authority
We construe the Union's argument that the Arbitrator lacked a basis on which to impose a reprimand on the grievant as a claim that the Arbitrator exceeded his authority when he mitigated the 1-day suspension to a written reprimand.
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons not encompassed within the grievance. U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996). It is well-established that an arbitrator may determine whether all or part of a disciplinary action is for just and sufficient cause. U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 273 (1995). Arbitrators routinely resolve, under the Statute, grievances over whether disciplinary action was warranted and if so, whether the penalty imposed was appropriate. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, Kentucky and American Federation of Government Employees, Local 1286, Council of Prison Locals, 48 FLRA 908, 912 (1993). In fact, this is "one of the functions that arbitrators perform, and that Congress intended that arbitrators perform, under the Statute." Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 336 (1990).
Crediting witnesses' testimony, the Arbitrator held that just cause existed for the disciplinary action. According to the Arbitrator, "it is clear that the [g]rievant should have known that his conduct was offensive." Award at 2. The Arbitrator concluded that a suspension was not warranted. However, the Arbitrator based his decision to reduce the grievant's penalty to a written reprimand on his finding that the grievant had committed some form of sexual harassment. Although the Union disagrees with the Arbitrator's determination that there was just cause for the disciplinary action, it has failed to establish that the Arbitrator exceeded his authority by imposing a written reprimand for the grievant's inappropriate actions. Accordingly, we deny this exception