54:0494(50)AR - - AFGE Local 3615 & SSA, Office of Hearings and Appeals, Falls Church, Virginia - - 1998 FLRAdec AR - - v54 p494



[ v54 p494 ]
54:0494(50)AR
The decision of the Authority follows:


54 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3615

(Union)

and

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

FALLS CHURCH, VIRGINIA

(Agency)

0-AR-2916

_____

DECISION

June 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Louis B. Aronin 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 filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency's refusal to permit the grievants to work at home under a pilot project violated the parties' collective bargaining agreement and an established past practice.

For the reasons explained below, 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.

II. Background and Arbitrator's Award

In 1990, the parties negotiated a Memorandum of Understanding (MOU) concerning a two-phase (one-year each) Flexible Workplace Pilot Project (pilot). The first phase of the pilot began in October 1992 and formally ended in October 1993. It was the intent of the parties that phase two of the pilot would then be implemented with broader employee participation and scope. However, negotiations regarding phase two reached impasse and it has not been implemented. Participants in the first phase of the pilot have nevertheless been permitted to continue on a de facto basis. That is, the eight employees previously involved in the pilot have continued to work at home.

In addition to the pilot authorized by the MOU, HHS Instruction 300-2 permits an employee to work at home if he or she has an illness or injury that warrants a "special exception." Award at 5. Discretion to permit employees to work at home by special exception is vested in the Agency.

The instant grievance arose in 1995, when three grievants requested that they be permitted to work at home pursuant to the pilot. The Agency denied each of their requests on the ground that the pilot had ended. In so doing, the Agency did not consider the merits of the requests. The Union then filed a grievance, which was submitted to arbitration on the following issue, as framed by the Arbitrator:

Did the Employer violate the parties' Agreement by denying the request of the three Grievants . . . to work at home under the Flexiplace-Work at Home Pilot Project?

Id. at 2.

Before the Arbitrator, the Union argued that the Agency did not terminate the pilot but tacitly determined to continue it by permitting participants who were previously selected to continue to work at home. According to the Union, the Agency's action created a past practice and thereby extended the pilot that was governed by the MOU. Based on the prior award of Arbitrator Roger Kaplan in American Federation of Government Employees, Local 3615 and Social Security Administration, Office of Hearings and Appeals, Case No. BW-95-R-0036 (Kaplan award), the Union maintained that by denying the requests of each of the grievants, the Agency violated Article 3, section 2 of the parties' collective bargaining agreement.( * ) That section provides that the Agency shall treat employees fairly and equitably in matters of personnel management.

The Agency argued that the grievance should be denied because the pilot ended in 1993 and that permitting eight participants to continue in the pilot after its formal termination did not constitute an extension. The Agency further argued that its denial of the grievants' requests did not evidence disparate treatment.

The Arbitrator rejected the Union's assertions and found that the Agency did not violate the parties' bargaining agreement when it rejected the requests of the grievants. The Arbitrator stated that it is basic that an agreement is to be read literally, unless there is some ambiguity which warrants a review of the parties' practice. The Arbitrator found that in this case, the MOU is clear in setting its duration. The Arbitrator also found that it is undisputed that no employee selections were made after the pilot ended. Finally, the Arbitrator determined that the eight employees who were initially selected were permitted to continue to work at home because no reason existed to change their status and no requests to do so had been received. Based on these findings, the Arbitrator concluded that the Agency's retention of the status quo for the original participants in the pilot did not establish a past practice.

Finally, the Arbitrator rejected the Union's reliance on the Kaplan award. The Arbitrator found that although arbitrators generally view prior awards as binding, "where, as here, they do not involve the interpretation of a particular contract provision, but deal with the interpretation of a factual situation, the prior decision need not be followed." Award at 10. Accordingly, the Arbitrator concluded that the grievance should be denied.

III. Exceptions

A. Union's Contentions

In its exceptions, the Union submits that the award is deficient based on five grounds. First, the Union asserts that the Arbitrator erred by failing to properly define the issues presented by the grievance. The Union argues, in this regard, that the testimony of its chief negotiator on work-at-home issues shows that neither the grievants nor the Union agreed to limit the scope of the grievance to whether the grievants were eligible for participation in the pilot. The Union contends that the record fails to support this arbitral finding.

Second, the Union argues that the Arbitrator was biased because he relied on the testimony of an Agency official and did not give any consideration to "the persuasive rebuttal testimony [of the Union's chief negotiator] which was supported by documentary evidence[.]" Exceptions at 2.

As a third ground the Union alleges that the Arbitrator "misstated" the evidence when he found that "no selections were made after October 1993, the official end of the pilot[.]" Id. The Union states that an Agency document shows that an employee began participating in the pilot in June 1996. Moreover, the Union states that an Agency witness testified that another employee was permitted to work at home beginning in August 1994.

Fourth, the Union asserts that the Arbitrator's decision not to follow the Kaplan award was unsupported by any rationale. According to the Union, "Arbitrator Kaplan correctly ruled that the [a]gency had violated Article 3, section 2 of the National Agreement by creating a defacto [sic] work-at-home program by allowing the original participants to continue to work at home beyond the one year period while at the same time denying the same opportunity to other qualified employees." Id. at 3 (emphasis omitted).

Finally, the Union maintains that the Arbitrator failed to rule on an issue that was properly before him. The Union explains that the issue of whether any of the grievants was entitled to selection under other Agency work-at-home exceptions was presented to the Arbitrator, who erroneously decided not to address it. According to the Union, the undisputed testimony of its medical expert established that two of the grievants have medical problems sufficient to qualify them for participation in an Agency program that permits employees to work-at-home by special exception. The Union also contends that the Arbitrator ignored medical evidence concerning one of these two grievants that was entered into the record.

B. Agency's Opposition

The Agency argues that the Union's exceptions provide no basis for finding that the Arbitrator's award is deficient. In the Agency's view, the exceptions merely constitute the Union's dissatisfaction with the Arbitrator's decision and are an attempt to relitigate the issues. As such, the Agency submits that the exceptions should be denied.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

As its first exception, the Union contends that the Arbitrator erred by failing to properly define the issues presented by the grievance. The Union also contends as its fifth exception that the Arbitrator erred by failing to address an issue that was properly before him.

The Authority has construed exceptions alleging that an arbitrator failed to address an issue as a contention that the arbitrator exceeded his authority. See, e.g., National Labor Relations Board, Washington, D.C. and National Labor Relations Board Union, 48 FLRA 1337, 1346 (1994); U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 541 (1991). An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996).

It is well established that in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. See U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996). In this case, the record establishes that the parties were unable to arrive at a stipulation and the Arbitrator formulated the issue based on the parties' submissions. Our review of the award reflects that the Arbitrator's formulation of the issue is reasonable. It further reflects that the award is directly responsive to the issue as formulated by the Arbitrator. Accordingly, the Union has failed to establish that the award is deficient because the Arbitrator exceeded his authority.

B. The Arbitrator Was Not Biased and Conducted a Fair Hearing

The Union contends that the Arbitrator was biased because he relied on the testimony of an Agency official instead of the testimony of the Union's chief negotiator. In particular, the Union claims that the Arbitrator did not give any consideration to "the persuasive rebuttal testimony [of the Union's chief negotiator] which was supported by documentary evidence[.]" Exceptions at 2. In addition to the Union's claim that the Arbitrator was biased, this contention can be construed as a claim that the Arbitrator failed to conduct a fair hearing. We, therefore, analyze this contention on both grounds.

To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown 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 the party. E.g., U.S. Department of Veterans Affairs, Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 398 (1996).

The Union's bare assertion that the Arbitrator was biased because he did not consider the testimony of a particular witness does not, without more, satisfy the above-referenced standard. Accordingly, this ground provides no basis for finding the award deficient.

With regard to the alternative interpretation of this exception -- that the Arbitrator failed to conduct a fair hearing -- the Authority will find an award deficient when an arbitrator refuses to hear or consider pertinent and material evidence, or conducts the proceeding in a manner that prejudices a party so as to affect the fairness of the proceeding as a whole. See 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). The fact that an arbitrator conducted a hearing in a manner a party finds objectionable does not support a contention that the arbitrator denied that party a fair hearing. See Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620, 629-30 (1988).

In this case, there is nothing in the record demonstrating that the Arbitrator acted improperly so as to deny the Union a fair hearing. The Union has also failed to support its allegation with any evidence. Accordingly, this exception must be denied.

C. The Award Is Not Based On A Nonfact

We construe the Union's assertion that the Arbitrator "misstated" the evidence when he found that no selections for the pilot were made after its termination as a claim that the award is based on nonfact.

To establish that an award is based on a nonfact, the appealing party 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. See 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 mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995) (HCFA).

In this case, the record shows that subsequent to October 1993, two employees were permitted by the Agency to work at home. One employee, who the Union has identified, was referred to by the Arbitrator as "C.H." Award at 6. This employee was the grievant in the Kaplan award and became a participant in the pilot only after Arbitrator Kaplan sustained the grievance and ordered the Agency to permit him to work at home.

The second employee, who the Union also identifies, was referred to by the Arbitrator as employee "B." Id. However, employee "B" was not permitted to work at home pursuant to the pilot but instead qualified through the Agency's grant of a special exception.

In view of the foregoing