American Federation of Government Employees, Local 3369 and Social Security Administration, New York Region, New York, New York

[ v55 p1074 ]

55 FLRA No. 174

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3369
(Union)

and

SOCIAL SECURITY ADMINISTRATION
NEW YORK REGION
NEW YORK, NEW YORK
(Agency)

0-AR-3153

_____

DECISION

November 15, 1999

_____

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 Joan Ilivicky 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, which was untimely filed and has not been considered. [n1] 

      The Arbitrator denied a grievance which sought to overturn a 2-day suspension. For the following reasons, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The incident giving rise to this arbitration occurred when the grievant interviewed a client who had come to the office to inquire about an overpayment charged against her Social Security Benefits account. The interview took place at the grievant's desk. In the beginning of the interview, the grievant received a personal telephone call. The grievant took the call and spoke for ten minutes with his back turned to the client. When the grievant completed the call, the client told him that she thought he had behaved "disrespectful" towards her by speaking on the telephone for ten minutes with his back turned to her while she waited for service. Award at 3. This allegation of disrespectful behavior led to an argument between the two.

      During the argument, the grievant began to shout and allegedly said "now I'm going to make you pay the whole amount." Id. at 3-4. The grievant summoned his supervisor. Upon approaching the grievant's desk, the supervisor noticed that the client was "trembling." Id. at 3. The supervisor attempted to diffuse the argument and ascertain what had occurred but was unsuccessful. Then the supervisor directed the grievant to leave the area. While departing, the grievant allegedly said "she had an overpayment, she is not going to get away with it, she is going to pay it all back." Id. at 4.

      The Agency conducted an investigation into the incident. Based upon the investigation, the Agency suspended the grievant for two days for the "misuse of the authority of his position by attempting to force [the client] to repay her overpayment without affording her full and appropriate appeal rights." Id.

      The Union filed a grievance that proceeded to arbitration. The Arbitrator framed the issue as follows:

Was the two day suspension issued on May 5, 1998 to [the grievant] for just cause? If not, what shall be the remedy?

Id. at 2. [n2] 

      The Arbitrator denied the grievance, concluding that the suspension of the grievant was for just cause. As an initial matter, the Arbitrator summarized the contentions made before her by the parties. The Agency contended, and the Union disputed, that the grievant had violated "[Health and Human Services] HHS Standards of Conduct" which require courtesy and consideration "in dealing with the public[.]" Id. at 4-5. The Arbitrator noted that the Union contended that the penalty imposed on the grievant "is based upon circumstances that could not in fact occur" because the grievant did not have the [ v55 p1075 ] authority to force the client to repay her overpayment. Id. at 5. The Arbitrator stated that the Union claimed that the penalty is inappropriate because it is not consistent with the principles of progressive discipline.

      The Arbitrator found that the grievant had violated HHS Standards of Conduct by engaging in discourteous and disrespectful conduct toward both the client and the grievant's immediate supervisor. The Arbitrator further found that, based upon "the credible evidence," the grievant misused the authority of his position by attempting to force the client to repay her overpayment. Id. The Arbitrator stated that "[t]he fact that [the] [g]rievant did not have such authority is not material since the [c]lient did not know the extent of [g]rievant's authority." Id.

      The Arbitrator also found that the penalty of suspension imposed on the grievant was consistent with the principles of progressive discipline. In this regard, the Arbitrator stated:

Grievant had numerous prior oral discussions with [his supervisor] with reference to his behavior as specified under Article 23, Section 3, Counseling and Warnings, of the collective bargaining agreement. Grievant was directed to attend counseling by [his supervisor] which he failed and refused to do.

Id. at 6. Accordingly, the Arbitrator denied the grievance.

III.     Union's Exceptions

      The Union contends that the award is deficient on four grounds. First, the Union contends that the Arbitrator failed to conduct a fair hearing. The Union asserts that, in two days of proceedings, the Arbitrator permitted it only the last hour of the last day to present its case. The Union argues that, because of this restriction on the time to present its case imposed by the Arbitrator, it "had to forgo detailed questioning of witnesses and the introduction of relevant documents." Exceptions at 3. The Agency cites to U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 105 (1991) (Hill Air Force Base) for the proposition that the Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by refusing to consider "all the arguments made by one side due to a lack of time." Exceptions at 3.

      By way of background, the Union states that the Arbitration proceedings were conducted in an expedited format, under Article 25, Section 7 of the parties' collective bargaining agreement. According to the Union, it was the Arbitrator's view that, because of the expedited format, the proceedings could not encompass a third day. In this connection, the Union states that the expedited format of the proceedings "could not have been changed by the two parties involved, although it was within the discretion of the [A]rbitrator" to do so. Id. at 2.

      Furthermore, the Union notes that the proceedings extended over two days during inclement weather. The Union states that, on the first day, the Agency presented its case for one and a half hours before the proceedings were suspended because of poor weather conditions. The Union states that, on the second day, the proceedings were delayed until 11:30 a.m. because of the weather, and the Agency continued its presentation until 3 p.m. At that point, the Arbitrator declared that the proceedings would terminate at 4:30 p.m. Thereafter, the Union was permitted to present its case for one hour and, then the proceedings ceased.

      Second, the Union contends that the Arbitrator's finding that grievant misused the authority of his position is a nonfact. The Union notes that the Arbitrator found that the grievant actually did not have the authority to force repayment of an overpayment. The Union argues that the grievant could not have misused authority he did not have.

      Third, the Union contends that the Arbitrator's decision to sustain the suspension in whole or in part based on the grievant's failure to attend counseling does not draw its essence from the National Agreement. The Union argues that the Arbitrator misinterpreted Article 35, Sections 1A and 3 of the National Agreement as that contractual provision, "indicates that participation [in counseling] is not mandatory." Id. at 4.

      The Union attached to its exceptions a copy of the text of Article 35, Sections 1A and 3 and a letter, dated February 28, 1997, in which the Agency advised the grievant to seek help from the Employee Assistance Program (EAP). See Exceptions, Documents IV. and V.

      Finally, the Union contends that the award is contrary to 5 U.S.C. § 7503(a). [n3]  According to the Union, a penalty for discourteous conduct "calls for a pattern to occur prior to suspension, specifically a [sic] immediate supervisor's report of four instances within a one-year period." Exceptions at 5. The Union argues that 5 U.S.C. § 7503(a), and not the collective bargaining agreement, governs the matter of the penalty of suspension for the offense of discourteous conduct. The Union states that it relied on 5 U.S.C. § 7503(a) before the [ v55 p1076 ] Arbitrator, but the Arbitrator did not address that statutory provision in her award.

IV.     Analysis and Conclusions

A.     The Arbitrator Did Not Fail to Conduct a Fair Hearing

      The Union asserts that, in two days of proceedings, the Arbitrator permitted it only the last hour of the last day to present its case. The Union argues that, because of this restriction on the time to present its case imposed by the Arbitrator, it "had to forgo detailed questioning of witnesses and the introduction of relevant documents." Exceptions at 3.

      The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to hear or 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).

      The Union has not demonstrated that the Arbitrator prejudiced the Union or affected the fairness of the proceedings as a whole. The Union claims that the restriction on the time to present its case imposed by the Arbitrator prevented it from questioning witnesses, but does not explain what the testimony would have been, its relevance or how its omission affected the proceedings as a whole. Similarly, the Union has not disclosed the nature of the documents it was precluded from introducing into evidence.

      The Union cites Hill Air Force Base for the proposition that the Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by refusing to consider "all the arguments made by one side due to a lack of time." Exceptions at 3. However, Hill Air Force Base does not support its argument. In Hill Air Force Base, the Authority found an award deficient when the arbitrator had stated in the award that he would not consider the union's position on certain issues. In contrast, the Arbitrator in this case summarized the Union's position in the body of the award, establishing that the Union's arguments were considered. Therefore, the exception provides no basis for finding the award deficient. See Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Council 220, 55 FLRA 498, 501-02 (1999). We deny the exception.

B.     The Award Is Not Based on a 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. 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). An award will not be found deficient on the basis of an arbitrator's determination on any factual matters that the parties disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union has not established that the Arbitrator's determination that the grievant misused the authority of his position constitutes a nonfact. The Arbitrator determined that, based upon "the credible evidence," the grievant misused the authority of his position by attempting to force the client to repay her overpayment. Award at 5. The Arbitrator found the extent of the grievant's actual authority not "material" to the charge of misuse of authority, where the grievant had improperly attempted to force the client to repay her overpayment and the client did not know the extent of the grievant's authority. Id.

      It is clear that the grievant's authority to require repayment is a matter that the parties disputed below. Accordingly, it does not constitute a nonfact. Therefore, the exception provides no basis for finding the award deficient. We deny the exception.

C.     The Award Does Not Fail to Draw its Essence From the Agreement

      The Union contends that the Arbitrator's decision to sustain the suspension in whole or in part based on the grievant's failure to attend counseling does not draw its essence from the National Agreement. The Union argues that the Arbitrator misinterpreted Article 35, Sections 1A and 3 of the National Agreement as that contractual provision "indicates that participation [in counseling] is not mandatory." Exceptions at 4. [ v55 p1077 ]

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) 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; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      In this case, the Arbitrator referred to counseling conducted under Article 23, entitled "Counseling and Warnings" (Award at 6), while the Union asserts that the Arbitrator misconstrued Article 35, entitled "Employee Assistance and Counseling." The Union makes no argument with respect to Article 23. Thus, the Union has not established that the Arbitrator misconstrued Article 23.

      Article 35 deals with EAPs. While the Article 35 counseling letter submitted by the Union advised the grievant to seek help from the EAP, that document does not foreclose the possibility that the employee received other counseling unrelated to the EAP (for example, as part of progressive discipline). In fact the letter describes many counseling incidents. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the agreement.

      Therefore, the exception provides no basis for finding the award deficient. We deny the exception.

D.     The Award Is Not Contrary to 5 U.S.C. § 7503(a)

      The Union contends that the award is contrary to 5 U.S.C. § 7503(a). The Union argues that 5 U.S.C. § 7503(a), and not the collective bargaining agreement, governs the matter of the penalty of suspension for the offense of discourteous conduct. We review the questions of law raised by the contention de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      5 U.S.C. § 7503(a) provides that an employee may be suspended for 14 days or less for "discourteous conduct to the public confirmed by an immediate supervisor's report of four such instances within any one-year period or any other pattern of discourteous conduct."

      The Union has failed to establish that the Arbitrator's award sustaining the grievant's suspension is contrary to 5 U.S.C. § 7503(a). The grievant was not suspended for discourteous conduct. Rather, he was suspended for the "misuse of the authority of his position by attempting to force [the client] to repay her overpayment without affording her full and appropriate appeal rights." Award at 4. While the Arbitrator found that the grievant had violated HHS Standards of Conduct, the Arbitrator also found that the grievant had misused the authority of his position, the charge that served as the basis of the grievant's suspension. Under this circumstance, the Union has not established that the award is contrary to 5 U.S.C. § 7503(a).

      Therefore, the exception provides no basis for finding the award deficient. We deny the exception.

V.     Decision

      The Union's exceptions are denied.





Footnote # 1 for 55 FLRA No. 174 -

   The time limit for filing an opposition to an exception is 30 days after the date of service of the exception. 5 C.F.R. § 2425.1(c). The date of service is the date the exception is deposited in the U.S. mail, delivered in person, or received from commercial delivery. 5 C.F.R. § 2429.27(d). If the exception is served by mail, 5 days are added to the period for filing an apposition. 5 C.F.R. § 2429.22.

      The record establishes that the Union's exceptions were served on the Agency by commercial delivery on March 15, 1999. Thus, the Agency's opposition had to be filed with the Authority on April 14, 1999. The Agency's opposition was filed (postmarked) with the Authority on April 15, 1999, and therefore, was untimely.


Footnote # 2 for 55 FLRA No. 174 -