United States, Department of Veterans Affairs, New York Regional Office, New York, New York (Agency) and American Federation of Government Employees,, Local 1151 (Union)

[ v60 p17 ]

60 FLRA No. 6

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS,
NEW YORK REGIONAL OFFICE
NEW YORK, NEW YORK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1151
(Union)

0-AR-3784

_____

DECISION

June 17, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Hyman Cohen filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency failed to prove that it had just cause to reprimand the grievant, and he sustained the grievance. The Arbitrator also found that a settlement agreement between the Agency and the grievant was invalid. For the following reasons, we set aside the portion of the award regarding the settlement agreement, and we deny the remaining exceptions.

II.     Background and Arbitrator's Award

      In 2001, the grievant was admonished for failing to wear a tie on several occasions. The grievant and the Agency entered into a settlement agreement, in which the Agency agreed to rescind the admonishment and the grievant agreed that any future failure to abide by the dress code would result in a reprimand.

      In 2002, in the incident at issue here, a team coach observed the grievant not wearing a tie in his work area and reported this to the grievant's supervisor. Although the grievant claimed that he was on his lunch break at the time, the Agency reprimanded him.

      A grievance was filed, which was unresolved and was submitted to arbitration. The Arbitrator stated the issue as "whether the disciplinary action of reprimand issued by the Agency to the Grievant was for `just and sufficient cause' as provided in Article 13, Section 1 of the Labor Agreement;[ [n2] ] if not, what is the remedy to be awarded." Award at 5.

      The Arbitrator found that the team coach's testimony was both internally "contradictory" and inconsistent with a Report of Contact written by the supervisor. Id. at 12. According to the Arbitrator, the supervisor's testimony was "confusing, inconsistent, and, in general, seriously deficient with respect to essential details with respect to what he knew of the past problems that the Grievant had with the Agency's dress policy[,]" and conflicted with the supervisor's testimony with regard to whether visitors normally enter the area in which the grievant works. Id. at 14. The Arbitrator found that, under the parties' agreement, "the Agency failed to carry its burden of proof" that it had just cause to reprimand the grievant. Id. at 15. The Arbitrator stated that this conclusion "does not mean that the Grievant did not violate the Agency's dress code policy," but that "the Agency failed to prove by clear and convincing evidence that the Grievant was disciplined for just and sufficient cause." Id.

      The Arbitrator also found that the 2001 settlement agreement violated Article 1, Section 3 of the parties' agreement. [n3]  Id. at 17. In this connection, the Arbitrator found that the Agency "is required by law and the Labor Agreement to bargain with [the Union] in good faith[,]" and as it "bypassed" the Union when it entered into the [ v60 p18 ] settlement agreement with the grievant, that agreement is "unenforceable." Id.

      Accordingly, the Arbitrator sustained the grievance.

III.     Positions of the Parties

A.     Agency Exceptions

      The Agency argues that the Arbitrator made a "material mistake of fact" in concluding that the reprimand was not for just cause, and that this mistake "deprived the [Agency] of its right to discipline employees." Exceptions at 4. According to the Agency, the team coach's statements were "neither inconsistent nor fatal to the Agency's case[,]" and whether the supervisor was aware of the grievant's prior conduct is "inconsequential and irrelevant[.]" Id. The Agency contends that the alleged discrepancy between the supervisor's testimony and the team coach's testimony concerning the grievant's work area is also irrelevant. Further, the Agency claims that the Arbitrator ignored the testimony of another Agency witness. Moreover, the Agency asserts that the Arbitrator failed to resolve whether the grievant was at lunch -- and thus off duty and not required to wear a tie -- during the incident.

      Additionally, the Agency contends that the Arbitrator exceeded his authority by addressing the validity of the 2001 settlement agreement because that was not an issue before the Arbitrator. The Agency also challenges, as contrary to law, the Arbitrator's finding that the 2001 settlement agreement is invalid. In this connection, the Agency asserts that the discussion that resulted in the settlement agreement did not meet the formality requirements of § 7114(a)(2)(A) of the Statute, and thus, the Union did not have the right to be present during that discussion.

B.     Union Opposition

      The Union disputes the Agency's arguments regarding the Arbitrator's just cause determination. In addition, the Union claims that it was appropriate for the Arbitrator to address the validity of the 2001 settlement agreement, asserting that the Agency "introduced the issue of the settlement agreement during the arbitration because they relied on it to determine the level of discipline[,]" and the Union "disputed its validity." Opp'n at 1. Finally, the Union disputes the Agency's claim regarding § 7114(a)(2)(A) and states that the Agency has failed to address the fact that the Arbitrator found that the settlement agreement violated the parties' agreement.

IV.     Analysis and Conclusions

A.     The award is not based on nonfacts.

      The Agency claims that the Arbitrator's conclusion that there was no just cause for discipline was a "material mistake of fact[.]" [n4]  Exceptions at 4. In this connection, the Agency challenges the Arbitrator's finding that the testimony of the team coach and the supervisor was inconsistent, claims that the Arbitrator ignored other testimony, and asserts that one of the issues he addressed (the alleged inconsistency in testimony regarding whether visitors normally enter the grievant's work area) is irrelevant to whether the Agency had just cause to reprimand the grievant. We construe the Agency's arguments as asserting that the award is 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) (Lowry AFB). The Authority will not find an award deficient on the basis of the arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      With regard to the Arbitrator's conclusion that the discipline was not for just cause under the parties' agreement, an arbitrator's determination regarding whether an agency had just cause for discipline under a contract cannot be challenged as a nonfact. See NAGE, Local R1-109, 58 FLRA 501, 503 (2003) (determination of just cause); United States Dep't of the Navy, Naval Training Ctr., Orlando, Fla., 53 FLRA 103, 106 (1997) (determination of no just cause). Accordingly, the Agency's challenge to the Arbitrator's conclusion that there was no just cause provides no basis for finding that the award is based on a nonfact.

      With regard to the Arbitrator's finding that the testimony of the team coach and the supervisor was inconsistent [ v60 p19 ] and the Agency's assertion that the Arbitrator ignored other witness testimony, exceptions that dispute an arbitrator's evaluation of the credibility of witnesses and the weight to be given their testimony provide no basis for finding an award deficient. See United States DOL, Wash., D.C., 55 FLRA 1019, 1023 (1999) (then-Member Cabaniss dissenting on other grounds). As the Agency's arguments dispute the Arbitrator's evaluation of the credibility of witnesses and the weight to be given their testimony, those arguments provide no basis for finding the award deficient.

      Finally, the Agency's assertion that one of the factual issues addressed by the Arbitrator was irrelevant does not explain how a central fact underlying the award is erroneous, but for which the Arbitrator would have reached a different conclusion. Thus, this assertion does not demonstrate that the award is based on a nonfact.

      For the foregoing reasons, the Agency has not demonstrated that the award is based on nonfacts, and we deny the exception.

B.     The Arbitrator did not exceed his authority by declining to address whether the grievant was at lunch during the incident.

      The Agency asserts that the Arbitrator failed to resolve whether the grievant was at lunch during the incident. Exceptions at 7. We construe this assertion as alleging that the Arbitrator exceeded his authority.

      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. United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996) (DOD).

      The issue before the Arbitrator was "whether the disciplinary action of reprimand issued by the Agency to the Grievant was for `just and sufficient cause' as provided in Article 13, Section 1 of the Labor Agreement; if not, what is the remedy to be awarded." Award at 5. The Arbitrator found that, due to inconsistencies in the testimony of Agency witnesses, "the Agency failed to prove by clear and convincing evidence that the Grievant was disciplined for just and sufficient cause." Id. at 15. In other words, the Arbitrator determined that the Agency failed to meet its overall burden of proof because it failed to present credible evidence, thereby resolving the issue before him. Further, an arbitrator does not exceed his or her authority by declining to specifically rule on every issue raised by the parties. See, e.g., NTEU, Chapter 90, 58 FLRA 390, 395 (2003). Accordingly, the Agency provides no basis for concluding that the Arbitrator erred by declining to address the specific issue of whether the grievant was at lunch during the incident, and we deny the exception.

C.     The Arbitrator exceeded his authority by addressing the validity of the settlement agreement.

      As discussed above, the issue before the Arbitrator was whether the disciplinary action of reprimand was for just and sufficient cause. The issue did not involve whether the settlement agreement, entered into two-and-one-half years prior to the arbitration proceeding in this case, is valid. In this connection, the Arbitrator provided no explanation for why he was addressing the validity of the settlement agreement or how it related to the issue of just cause for the reprimand. Thus, by addressing the validity of the settlement agreement, the Arbitrator resolved an issue not submitted to arbitration, thereby exceeding his authority. See United States Dep't of Transp., FAA, 59 FLRA 776, 778 (2004) (Member Pope dissenting). Accordingly, we set aside the portion of the award addressing the validity of the settlement agreement. [n5] 

V.     Decision

      The portion of the award regarding the settlement agreement is set aside, and the remaining exceptions are denied.


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree with the majority in all aspects but one: the decision to set aside the portion of the award concerning the settlement agreement. For the following reasons, I would find that the Arbitrator did not exceed his authority by addressing the validity of the settlement agreement, and I would deny the exceptions challenging the portion of the award that addresses that issue.

      The Agency introduced before the Arbitrator the Report of Contact written by the grievant's supervisor, which referenced the settlement agreement. See Award at 13. In addition, it is undisputed that the Agency's determination that a reprimand was the appropriate level of discipline was based, in part, on the settlement agreement. See Exceptions, Attachment C (Reprimand); Exceptions, Attachment H (Letter Resolving Step 2 of [ v60 p20 ] Grievance). See also Opp'n at 1. As the issue formulated by the Arbitrator involved whether the Agency had just cause to issue "the disciplinary action of reprimand[,]" Award at 5, and the settlement agreement was a basis for the choice of a reprimand as the form of discipline, the Arbitrator's finding that the settlement agreement was invalid and unenforceable is directly responsive to the issue as formulated by the Arbitrator. Accordingly, I would find that the Arbitrator did not exceed his authority by resolving this issue. See, e.g., Bremerton Metal Trades Council, 59 FLRA 583, 589 (2004).

      With regard to the Agency's claim that the Arbitrator should have addressed whether the 2001 admonishment is still in effect, the Agency does not explain why the issue before the Arbitrator required him to do so. Accordingly, I would find that the Agency provides no basis for concluding that the Arbitrator exceeded his authority by declining to address this issue.

      Finally, I would reject the Agency's claim that the award is contrary to § 7114(a)(2)(A) of the Statute. The Arbitrator found that the Agency "bypassed" by the Union by entering into the settlement agreement and that "the Agency is required by law and the Labor Agreement to bargain with [the Union] in good faith[.]" Award at 17. The Agency argues only that the discussion that resulted in the settlement agreement did not constitute a "formal discussion" within the meaning of § 7114(a)(2)(A) of the Statute. However, a union's statutory right to be present at formal discussions is a right "granted in addition to, and distinct from, the [u]nion's right to negotiate terms and conditions of employment[.]" SSA, 55 FLRA 978, 982 (1999) (then-Member Cabaniss dissenting on other grounds). Accord United States INS, United States Border Patrol, El Paso, Tex., 47 FLRA 170, 186 n.9 (1993) (noting that a previous case "arose in the context of whether the agency bypassed the union by negotiating an informal adjustment of a unit employee's EEO complaint and did not address the union's institutional right to be represented at formal discussions under section 7114(a)(2)(A) of the Statute"). Thus, even if the settlement discussion was not a "formal discussion" within the meaning of the Statute, that does not demonstrate that no bypass occurred in the creation of the settlement agreement. Accordingly, I would deny the exception.

      For the foregoing reasons, I dissent in part.



Footnote # 1 for 60 FLRA No. 6 - Authority's Decision

   The separate opinion of Member Pope, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 6 - Authority's Decision

   The wording of Article 13, Section 1 of the parties' agreement does not appear in the record.


Footnote # 3 for 60 FLRA No. 6 - Authority's Decision

   Article 1, Section 3 provides, in pertinent part:

The Department will not bypass the Union by entering into any formal discussions or agreements with other employee organizations or bargaining unit employees concerning all matters affecting personnel policies, practices, or working conditions . . . .
The Union will be given the opportunity to be represented at all formal discussions (including those held with other employee organizations) affecting personnel policies, practices, or working conditions. . . .

Award at 16-17.


Footnote # 4 for 60 FLRA No. 6 - Authority's Decision

   The caption to the Agency's argument states that the Arbitrator's alleged mistake of fact "deprived the [Agency] of its right to discipline employees[,]" but does not cite § 7106 of the Statute or provide any argument in this regard. Exceptions at 4. As such, to the extent that the Agency's claim could be construed as asserting that the award is contrary to the Agency's right to discipline, we reject that claim as a bare assertion. See, e.g., United States Dep't of Energy, S.W. Power Admin., Tulsa, Okla., 56 FLRA 624, 626 (2000) (citing United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 558 n.3 (1999)).