American Federation of Government Employees, Local 1006 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Medical Center Carswell, Fort Worth, Texas (Agency)

[ v58 p451 ]

58 FLRA No. 107

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1006
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL MEDICAL CENTER CARSWELL
FORT WORTH, TEXAS
(Agency)

0-AR-3605

_____

DECISION

April 8, 2003

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Harold E. Moore 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 filed an opposition to the Union's exceptions.

      The Arbitrator found there was just cause for the Agency to suspend the grievant and denied the grievance. For the following reasons, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant, a psychiatrist who treats incarcerated patients, was given a one-day suspension for altering prescriptions and for failing to fully cooperate with the Agency's investigation regarding the prescriptions. A grievance was filed challenging the suspension, which was unresolved and submitted to arbitration. The parties stipulated the issues before the Arbitrator as the following: "Was [the grievant] suspended for just and sufficient cause? If not, what shall be the remedy?" Award at 1.

      The Arbitrator reviewed the facts and testimony and found that the Agency acted fairly in suspending the grievant. In this regard, the Arbitrator found that the [ v58 p452 ] grievant's explanation of the incident at issue was "convoluted," and that "[t]here was no showing that management . . . abused its discretion in this case." Id. at 5. Accordingly, the Arbitrator concluded that the suspension was for just cause and denied the grievance. Id.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator "committed a procedural reversible error" by denying the Union access to certain evidence the Union alleges was necessary to the grievant's case. Exceptions at 2. In this connection, the Union asserts that the evidence would have demonstrated that the grievant was "singled out" for discipline by the Agency. Id. at 5. In addition, addressing the facts giving rise to the suspension, the Union argues that the Arbitrator committed a "substantive reversible error." Id. at 5. Finally, the Union contends that the Agency violated § 7114 of the Statute, and that the Agency suspended the grievant in retaliation for prior claims the grievant filed against the Agency. See id. at 5, 7.

B.     Agency's Opposition

      The Agency contends that the Union has not established that the Arbitrator erred by denying the Union access to certain evidence and that the Union's claim alleging substantive reversible error is an attempt to relitigate the merits of the grievance. The Agency also contends that the Union's claim that the Agency is retaliating against the grievant was not presented to the Arbitrator and, accordingly, is not properly before the Authority. Opposition at 8.

IV.     Analysis and Conclusions

A.     The Union has not established that the Arbitrator failed to conduct a fair hearing

      We construe the Union's claim that the Arbitrator committed a procedural reversible error by denying the Union access to certain evidence as a claim that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. AFGE, Local 1668, 50 FLRA 124, 126 (1995). It is well established that an arbitrator has considerable latitude in conducting a hearing, and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, by itself, provide a basis for finding an award deficient. GSA, Reg. 9, L.A., Cal., 56 FLRA 978, 979 (2000).

      Nothing in the Union's exception establishes that not having access to the medical records and other documents requested by the Union, prejudiced the Union's ability to present its position before the Arbitrator. See United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057, 1073 (2001) (agency failed to demonstrate that it was prejudiced by arbitrator's refusal to permit agency to view certain documents); AFGE, Local 3947, 47 FLRA 1364, 1374-75 (1993) (union failed to demonstrate that grievant was denied due process as a result of agency's failure to disclose certain evidence). In this regard, the record demonstrates that the Union presented evidence, testimony, and arguments concerning the order in which the prescriptions at issue were processed, the manner in which the grievant wrote prescriptions, whether the grievant was singled out for discipline, and whether the grievant's actions warranted discipline -- the issues that the Union claims it was prejudiced in addressing. See Union's Post Hearing Brief at 2-10. Moreover, the award demonstrates that the Arbitrator considered the arguments and evidence presented by the parties in concluding that the Agency had just cause to discipline the grievant. Accordingly, we deny the exception.

B.     The Union has not established that the award is based on a nonfact

      Addressing the facts giving rise to the suspension, the Union asserts that the Arbitrator committed a substantive reversible error in concluding that the grievant committed the infraction for which he was suspended. We construe this assertion as a claim that the award is based on a nonfact. 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. 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 hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      Because the parties disputed before the Arbitrator whether the grievant committed the infraction for which he was suspended, the Union's claim does not establish that the award is deficient. See United States Dep't of Defense, Nat'l Guard Bur., Adjutant General, Kan. [ v58 p453 ] Nat'l Guard, 57 FLRA 934, 938 (2002). Accordingly, we deny the exception.

C.     The Union's claims that the Agency violated § 7114 of the Statute and that the grievant was suspended in retaliation for filing prior claims will not be considered under 5 C.F.R. § 2429.5

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. AFGE, 57 FLRA 769 (2002). In its exceptions, the Union asserts that the Agency "violated [§] 7114 of the Statute by denying release of sanitized patient records to the Union to provide adequate representation" for the grievant. Exceptions at 5. The Union also asserts that the grievant's suspension was based on retaliation for prior claims filed by the grievant against the Agency. Id. at 7. Nothing in the award or elsewhere in the record demonstrates that the Union raised either claim before the Arbitrator. Consisten