American Federation of Government Employees, Local 3342 (Union) and Social Security Administration, Buffalo, New York (Agency)

[ v58 p448 ]

58 FLRA No. 106

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3342
(Union)

and

SOCIAL SECURITY ADMINISTRATION
BUFFALO, NEW YORK
(Agency)

0-AR-3534

_____

DECISION

April 4, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
arol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert E. Stevens filed by the Union under § 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 found that the Agency did not violate the parties' collective bargaining agreement by suspending the grievant for two days and denied the grievance. For the reasons that follow, we conclude that the arbitration award is not deficient, and we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant was suspended for two days for violating the Agency's unauthorized access policy after she accessed her own social security account using the Agency's computer system. A grievance was filed disputing that the Agency had just cause for the suspension. When the grievance was not resolved, the parties submitted the matter to arbitration. At the hearing, according to the Arbitrator, "[t]he parties stipulated that the issue to be determined [was] whether [the grievant's] two-day suspension for unauthorized access of the [Agency's] computer system . . . was for just cause." Award at 2-3.

      The Arbitrator found that the dispositive question was whether the grievant "knew or should have known" [ v58 p449 ] that her actions constituted misconduct. Id. at 5. The Arbitrator credited the grievant's testimony that "she didn't know" her access of the computer system constituted misconduct. Id. at 4. However, he found that the grievant had received "adequate notice" of the Agency's policy on sanctions for unauthorized access of the computer system. Id. at 6. Therefore, the Arbitrator concluded that the grievant "should have known" the Agency's policy on unauthorized access. Id. at 7. Based on the foregoing, the Arbitrator found just cause for the two-day suspension.

      In reaching his conclusion, the Arbitrator rejected the Union's arguments that other arbitrators had mitigated two-day suspensions in similar cases and that the grievant received disparate treatment. The Arbitrator declined to follow the five arbitration decisions that the Union entered in evidence, finding them insignificant given the number of employees and unauthorized access violations at the Agency.

      The Arbitrator also rejected the Union's argument that under principles of progressive discipline, the grievant should have been counseled or warned before being suspended for two days. The Arbitrator acknowledged that counseling or warning is usually the first step of progressive discipline. However, the Arbitrator found that the two-day suspension was appropriate here because the grievant received notice of the Agency's unauthorized access policy and signed a certification of counseling to that effect.

      Finally, the Arbitrator rejected the Union's argument that the "Douglas factors" announced in Douglas v. Veterans Admin., 5 MSPR 280 (1981) should be applied. Id. at 6. According to the Arbitrator, the Douglas factors apply only when resolving disputes over "harsh disciplinary actions[,]" which do not include a two-day suspension. Id. (emphasis omitted).

      Based on the foregoing, the Arbitrator denied the grievance.

III.     Union's Exceptions

      First, the Union asserts that the award is incomplete, ambiguous, or contradictory. Specifically, the Union argues that the Arbitrator misstated the parties' stipulated issue by including the words "unauthorized access" and by leaving out "the entire sentence" concerning an appropriate remedy. Exceptions at 2. According to the Union, the parties' stipulation states: "Did the Social Security Administration have just cause to issue a two-day suspension to the [g]rievant . . . ? If not[,] what should the remedy be?" Union's Opening Statement Attachment at 2. In addition, the Union argues that the Arbitrator's finding that the grievant "didn't know" her actions constituted misconduct conflicts with his finding that "she knew or should have known unauthorized access would result in discipline . . . ." Id. at 3 (quoting the Award at 7). According to the Union, the Arbitrator also "confused certain notices sent out to all . . . employees with `counseling.'" Id. at 4.

      Next, the Union argues that the award is based on a nonfact because the Arbitrator relied on "pure speculation" rather than on the arbitration awards that the Union submitted in evidence. Id. at 5. According to the Union, the Arbitrator "had a clear obligation to rule based on the information presented to him," which shows that other arbitrators have reduced two-day suspensions in "factually similar cases" and, therefore, proves disparate treatment of the grievant. Id. at 5-6.

      The Union further argues that the award fails to draw its essence from the parties' agreement because the Arbitrator misinterpreted Article 23 of the agreement. In this regard, the Union asserts that the Arbitrator used the terms "short lay-off" and "long lay-off," which do not appear in the agreement, and ignored the term "reprimand," which does appear in the agreement. Id. at 7. The Union further argues that the Arbitrator ignored the Douglas factors, contrary to Article 3 of the parties' agreement, which requires that the grievant be treated "fairly and equitably." Id. at 8. Accordingly, the Union claims that the Arbitrator erred in finding that there was just cause for the two-day suspension.

      Finally, the Union makes several claims disputing the manner in which the Arbitrator conducted the hearing. In particular, the Union states that "[o]ne can only imagine the bias that the [A]rbitrator would hold against the grievant" had the Union stipulated that the grievant violated the Agency's policy. Id. at 2-3. Moreover, the Union argues that the Arbitrator's "entire perspective of the case may have been skewed by his misstatement of the issue." Id. at 3. Further, according to the Union, the Arbitrator's refusal to consider the "opinions of his peers," id. at 5, "borders on arrogance." Id. at 6.

IV.     Analysis and Conclusions

A.     The Award Is Not Incomplete, Ambiguous, or Contradictory

      For an award to be found deficient as incomplete, ambiguous, or contradictory, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award are too unclear or uncertain. See AFGE, Local 1843, 51 FLRA 444, 448 (1995). The Union disputes the Arbitrator's [ v58 p450 ] findings concerning the grievant's veracity and claims that the Arbitrator misstated the parties' stipulated issue. However, the Union's arguments in this regard do not demonstrate that the meaning and effect of the award, which denied the grievance, is so uncertain that the award is impossible to implement. Accordingly, we deny the Union's exception.

B.     The Award Is Not Based On Nonfacts

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at the hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      We reject the Union's claim that the award is based on a nonfact because the Arbitrator failed to find that the grievant was treated disparately. The issue of whether the grievant was treated disparately was disputed at the arbitration hearing, and the Arbitrator found that she was not. We also reject the Union's claim that the Arbitrator incorrectly found that the grievant was "counseled." Exceptions at 4. The Arbitrator did not find that the grievant was counseled within the meaning of Article 23 of the parties' agreement. Rather, the Arbitrator referred to "counseling" in finding that the grievant received "notice" of the Agency's unauthorized access policy. Award at 5. That reference is not a central fact underlying the award. Accordingly, we deny the Union's exception.

C.      The Award Does Not Fail To Draw Its Essence From the Parties' Agreement

      The Authority will find an award deficient as failing to draw its essence from a 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 Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Union argues that the Arbitrator misinterpreted Article 23 of the parties' agreement with respect to progressive discipline and the Douglas factors. In relevant part, Article 23 provides that the parties "agree[] `to the concept of progressive discipline' and that `[n]ormally, discipline will be preceded by counseling and assistance including oral warnings . . . .'" Exceptions at 6 (quoting Article 23 of the parties' agreement). Article 23 also identifies reprimand as a step in progressive discipline. The Arbitrator interpreted Article 23 as permitting the Agency to skip counseling and warning when, as here, the Agency has already given adequate notice that unauthorized access of the computer system constitutes misconduct. Moreover, according to the Arbitrator, application of the Douglas factors is necessary only when resolving "harsh disciplinary actions[,]" not a 2-day suspension. Id. (emphasis omitted). We find that this interpretation and application of Article 23 is not implausible or unfounded and does not evidence a manifest disregard for the parties' agreement. Accordingly, we deny the Union's exception.

D.     The Arbitrator Was Not Biased

      The Union states that "[o]ne can only imagine the bias that the [A]rbitrator would hold against the grievant" had the Union stipulated that the grievant violated the Agency's policy. Exceptions at 2-3. To demonstrate that an award is deficient because an arbitrator was biased, a party must show that the award was procured by improper means, that the arbitrator was partial or corrupt, or that the arbitrator engaged in misconduct that prejudiced the party's rights. See, e.g., AFGE, Council 215, 52 FLRA 85, 87 (1996). The Union has not demonstrated that the award was procured by improper means, that the Arbitrator was impartial or corrupt, or that the grievant was unduly prejudiced. Therefore, we deny the Union's exception.

E.     The Arbitrator Conducted a Fair Hearing

      We construe the Union's claims that the Arbitrator was "skewed" in his perspective and that his refusal to consider other arbitration awards bordered on arrogance 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 by refusing to consider pertinent and material evidence or by other actions that prejudice a party and affect the fairness of the proceeding as a whole. See AFGE, Local 1668, 50 FLRA 124, 126 (1995). Arbitrators have considerable latitude in conducting hearings, and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996). [ v58 p451 ]

      The Authority has long held that arbitration awards are neither precedential nor binding upon arbitrators. See AFGE, Local 3615, 54 FLRA 494, 501 (1998). Therefore, the Arbitrator's refusal to follow the arbitration awards submitted by the Union does not demonstrate that he failed to consider pertinent or material evidence. Further, none of the Union's objections demonstrate that the Arbitrator acted in a manner that unduly prejudiced the grievant. Consequently, they do not provide a basis for finding th