American Federation of Government Employees, Local 3495 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Oxford, Wisconsin (Agency)

[ v60 p509 ]

60 FLRA No. 102

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3495
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
OXFORD, WISCONSIN
(Agency)

0-AR-3857

_____

DECISION

December 22, 2004

_____

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 Howard S. Bellman 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. [n1]  The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the grievance, which alleged that the Agency improperly imposed a one-day suspension on the grievant. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      During a dispute with an inmate, the grievant, a Correctional Treatment Specialist, shouted profane language at the inmate. The Agency's warden issued the grievant a one-day suspension for "Loss of Temper in the Presence of an Inmate." Award at 4. A grievance was filed, which was unresolved and was submitted to arbitration. The parties stipulated the issues to be: "Was the disciplinary action taken for just and sufficient cause; and if not, what shall be the remedy?" Id. at 1.

      The Arbitrator determined that the grievant "substantially admitted" the Agency's allegation that he shouted profanity at an inmate in the food service area of the prison. Id. at 11. The Arbitrator rejected the Union's claim that the grievant did not "los[s] his temper[,]" as that term is defined by a "standard dictionary[.]" Id. Instead, relying on the Agency's Standards of Employee Conduct, the Arbitrator defined "Loss of Temper" as "state of mind in which the employee's emotions, and especially . . . anger, determine his conduct, when it should be determined by his judgment." Id. Applying this definition, the Arbitrator found that the grievant's actions resulted from his "anger and fear." Id. The Arbitrator also found that the grievant's assertion that his use of a "loud voice" and "strong language" were "deliberate tactics" was "inconsistent with common sense." Id.

      Regarding the reasonableness of the grievant's discipline, the Arbitrator found that the one-day suspension "was not unreasonable so as to require its modification." Id. at 12. In this regard, he noted that the grievant's suspension was based on "two varieties of misconduct, profanity and `loss of temper,'" but determined that the grievant's length and quality of service "require both progressive discipline and a relatively mild response in this case." Id. The Arbitrator concluded that the one-day suspension was for just and sufficient cause, and he denied the grievance. Id.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is contrary to law on various grounds. First, the Union asserts that the Agency violated "basic due process" by failing to notify the grievant what conduct constitutes loss of temper. Exceptions at 4. Second, the Union asserts that the grievant was disciplined for "more conduct violations [than] were initially charged by the Agency." Id. As support for both of the assertions, the Union cites AFGE, Local 1770, 51 FLRA 1302 (1996).

      Third, the Union claims that the Agency failed to notify the Union that the Agency planned to assert the location of the grievant's misconduct (the food service area) as an aggravating factor in determining the grievant's discipline. See Exceptions at 2 (citing Westmoreland v. Dep't of Veterans Affairs, 83 MSPR 625 (1999) (Westmoreland) and Brown v. United States Postal [ v60 p510 ] Serv., 47 MSPR 50 (1991) (Brown)). Fourth, the Union claims that the award is contrary to Brown because the Arbitrator erroneously considered testimony that was not available to the warden when he decided to suspend the grievant. See id.

      The Union also makes a variety of additional contrary to law claims. In this regard, the Union contends that the grievant's "privacy rights" were violated and certain of the Arbitrator's actions were "prohibited by law." Id. at 2. The Union also contends that the Arbitrator erroneously found that the warden may only impose one of two possible penalties on the grievant and that a standard dictionary is not the only appropriate authority for defining "loss of temper." Id. at 3, 4. The Union further contends that the award is contrary to law because the Arbitrator denied the Union the opportunity to question the Agency's attorney, the Agency failed to prove that the grievant was carrying his radio at the time of the misconduct, and the record did not support the Arbitrator's finding that the grievant's use of profanity resulted from his anger. See id. at 3.

      The Union also claims that the award fails to draw its essence from Article 30, Section I of the parties' agreement because the grievant was suspended based on misconduct for which he had previously been orally admonished. [n2]  See Exceptions at 4. In addition, the Union asserts that the Arbitrator exceeded his authority by deciding the appropriate mitigation for the charges of profanity and loss of temper, when he was only charged with deciding the mitigation for the loss of temper charge. Id. at 4. The Union also asserts that the Arbitrator exceeded his authority by finding, contrary to the "Federal Courts[,]" that a standard dictionary is not the only appropriate authority for defining "loss of temper[.]" Id.

      Further, the Union contends that the award is based on nonfacts because the Agency failed to prove that the grievant was carrying his radio at the time of the misconduct and because the Arbitrator equated the charge of "Loss of Temper" with the charge of "Use of Profanity[.]" Id. at 5. The Union further contends that the Arbitrator failed to conduct a fair hearing by considering testimony that was not presented to the warden and by refusing to require the Agency's attorney to testify. See id. at 5-6.

B.      Agency's Opposition

      The Agency contends that the Union's claims, based on AFGE, Local 1770, are unsupported and should be dismissed as bare assertions. Opposition at 6. The Agency also disputes the Union's reliance on Westmoreland and Brown. In this regard, the Agency contends that the grievant's suspension is not covered by 5 U.S.C. §§ 4303 or 7512 and, thus, under Authority precedent, the Arbitrator is not bound by the same substantive standards as the Merit Systems Protection Board (MSPB) in resolving the grievance. See id. at 5. Regarding the remainder of the Union's contrary to law arguments, the Agency asserts that the Union has failed to identify any "specific law, rule, or regulation" with which the award is contrary. Id. at 6.

      The Agency asserts that the Union's essence claim is a bare assertion. Id. at 8. Regarding the Union's exceeded authority claim, the Agency contends that the award is directly responsive to the issues presented and that the Arbitrator did not resolve an issue not submitted to arbitration. Id. at 9. Further, the Agency disputes that the award is based on nonfacts and that the Arbitrator failed to conduct a fair hearing. See id. at 13-14.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      The Union contends that the award is contrary to law on various grounds. When a party's exceptions challenge an award's consistency with law, the Authority reviews the exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. 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. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union claims that the Agency violated "basic due process" by failing to inform the grievant what conduct constitutes loss of temper. Exceptions at 4. The Union also claims that the Agency disciplined the grievant for "more conduct violations [than] initially charged by the [A]gency." Id. at 3-4. We construe these claims as assertions that the grievant was denied due process. See Nat'l Air Traffic Controllers Ass'n, MEBA/NMU, 52 FLRA 787, 791 (1996); AFGE, Local 1151, 54 FLRA 20, 26 (1998).

      The Authority has consistently held that employees subject to suspensions of 14 days or less under 5 U.S.C. § 7503 are entitled to pre-decisional proceedings no more formal or extensive than an oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to present his or her side of the story. See AFGE, [ v60 p511 ] Local 1151, 54 FLRA at 26-7; United States Dep't of Veterans Affairs, Nat'l Mem'l Cemetery of the Pac., 45 FLRA 1164, 1177 (1992).

      Here, the Agency provided the grievant with a written notice of the proposed suspension, which set forth the charge against the grievant and the Agency's evidence. See Award at 1-2. The grievant was afforded an opportunity to, and did, "orally respon[d]" to the charges against him. Award at 3. As such, the grievant's due process rights were satisfied. See AFGE, Local 1151, 54 FLRA at 26-7.

      Further, even assuming, as the Union claims, that the suspension was based on the grievant's loss of temper, as well as his use of profanity, this provides no basis for finding that the grievant's due process rights were violated. See Exceptions at 3-4. The notice of proposed suspension informed the grievant that the charge against him resulted, in part, from his use of profanity towards the inmate. See Award at 2. As the Agency notified the grievant of the charges against him and adequately explained the evidence on which the proposed suspension was based, the grievant's due process rights were satisfied. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 596-97 (1993).

      In addition to its due process allegations, the Union relies on MSPB precedent requiring an agency to follow particular procedural standards when asserting aggravating factors and offering witness testimony not available to the suspending official. See Exceptions at 2 (citing Westmoreland and Brown). However, as asserted by the Agency, arbitrators are bound by the same substantive standards as the MSPB only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. See, e.g., AFGE, Local 1770, 51 FLRA at 1306. Here, the grievant's suspension was for one day, pursuant to § 7503, and thus it is not covered by §§ 4303 or 7512. As such, the Arbitrator was not bound by the same substantive standards as the MSPB. See id. Consequently, the Union has not demonstrated that the award is contrary to Westmoreland or Brown.

      With regard to the remainder of the Union's contrary to law exceptions, the Union fails to cite any specific law, rule, or regulation with which the award is contrary. An unsupported allegation that the award is contrary to law, rule, or regulation provides no basis for finding the award deficient. See, e.g., United States Dep't of Agric., Farm Serv. Agency, Kansas City, Mo., 55 FLRA 1060, 1063 (1999).

      Based on the foregoing, we deny the Union's contrary to law exceptions.

B.      The award draws its essence from the parties' agreement.

      In order for an award to be found deficient because it does not draw its essence from a collective bargaining agreement, a party must show 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 the purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      According to the Union, Article 30, Section I of the parties' agreement states that "[s]upervisors are not required to annotate oral counseling sessions in an employee's performance log." Exceptions at 4. Even assuming, as the Union claims, that the grievant's supervisor orally admonished the grievant and did not record the action, the Union fails to explain the connection between the admonishment, the suspension, and Article 30, Section 1. As the Union has failed to establish that the award is implausible, irrational, or unconnected to the wording of the parties' agreement, the Union provides no basis for finding that the award fails to draw its essence from the parties' agreement. See United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 56 FLRA 381, 384 (2000). Accordingly, we deny the exception.

C.      The Arbitrator did not exceed 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. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). The Union claims that the Arbitrator exceeded his authority in two respects.

      First, the Union claims that the Arbitrator exceeded his authority by deciding the appropriate mitigation for the charges of profanity and loss of temper, when he was only charged with deciding the appropriate mitigation for the loss of temper charge. See Exceptions at 5. We construe this as a claim that the Arbitrator resolved an issue not submitted to arbitration. The issues before the Arbitrator were whether the grievant's suspension was for just and sufficient cause and, if not, what was the appropriate remedy. Award at 1. The Arbitrator resolved these issues. In doing so, he addressed the reasonableness of the suspension, finding that the grievant's discipline was based on "two varieties [ v60 p512 ] of misconduct, profanity and `loss of temper,'" and that the suspension was "not unreasonable so as to require its modification." Award at 12. As the Arbitrator's award is directly responsive and confined to the stipulated issues, the Union has failed to demonstrate that the Arbitrator exceeded his authority. See Fed. Deposit Ins. Corp., Chi. Region, 45 FLRA 437, 447 (1992). Accordingly, we deny the exception.

      Second, the Union claims that the Arbitrator exceeded his authority by finding, contrary to the "Federal Courts[,]" that a standard dictionary is not the only appropriate authority for defining "loss of temper[.]" Exceptions at 4. We construe this as a claim that the Arbitrator disregarded specific limits on his authority. In resolving the stipulated issues, the Arbitrator noted that a standard dictionary was "not the only or dispositive authority" in defining the term loss of temper, and instead relied on the Agency's Standards of Employee Conduct to define the term. Award at 11. As the Union fails to cite to any specific limitation requiring the Arbitrator to rely on a dictionary, rather than the Agency's Standards of Employee Conduct, we deny the exception. See Fed. Energy Regulatory Comm'n, 58 FLRA 596, 598 (2003).

D.      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 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)).

      The Union claims that the award is based on a nonfact because the Agency failed to prove that the grievant was carrying his radio at the time of the dispute with the inmate. See Exceptions at 5. However, there is nothing in the award that indicates that the question of whether the grievant was carrying his radio was determinative of the Arbitrator's finding of just cause. Therefore, the grievant's possession of his radio was not a central fact and the Union's claim does not provide a basis for finding the award deficient. See NAGE, Local R1-109, 58 FLRA 501, 503 (2003). Accordingly, we deny the exception.

      The Union also claims that the award is based on a nonfact because the Arbitrator equated the charge of "Use of Profanity" with the charge of "Loss of Temper[,]" when the two are separate charges under the Agency's Standards of Employee Conduct. Exceptions at 5. However, a review of the award establishes that the Arbitrator determined that the suspension was based on "two varieties of misconduct, profanity and `loss of temper[.]'" Award at 12. Accordingly, contrary to the Union's claim, the Arbitrator did not "equate" the two charges. As such, the Union has failed to identify a clearly erroneous central fact underlying the award but for which the Arbitrator would have reached a different result, and we deny the exception.

E.      The Arbitrator conducted 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 or 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. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995). It is well-established that an arbitrator has considerable latitude in conducting the hearing. See, e.g., AFGE, Local 3342, 58 FLRA 448, 450 (2003); United States Dep't of the Navy, Mare Island Naval Shipyard, Vallejo, Calif., 53 FLRA 390, 396 (1997).

      The Union contends that the award is deficient because the Arbitrator improperly considered testimony that was not presented to the warden. See Exceptions at 5-6. The liberal admission of testimony and evidence by an arbitrator is a permissible practice. See, e.g., AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996). As the Union has failed to establish that the admission of the disputed testimony prevented the Union from presenting its case in full to the Arbitrator or otherwise affected the fairness of the hearing, we deny the exception. See United States Dep't of Hous. & Urban Dev., Denver, Colo., 53 FLRA 1301, 1318 n.8 (1998).

      Further, the Union contends that the Arbitrator failed to conduct a fair hearing by denying the Union the opportunity to question the Agency's attorney. See Exceptions at 6. The award indicates that the Arbitrator heard and considered testimony from both parties and based his conclusions on the record as a whole. See Award at 12. As arbitrators have considerable latitude in conducting arbitration hearings and there has been no showing that the Arbitrator's conduct of the hearing was improper or prejudiced the Union, we deny the exception. See AFGE, Council 163, 54 FLRA 880, 890 (1998).

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 60 FLRA No. 102 - Authority's Decision

   The grievant filed the exceptions to the award, following which the Authority's Case Control Office (CCO) issued an Order to Show Cause directing the grievant to demonstrate that he was authorized by the Union to do so. See Order to Show Cause at 1; 5 C.F.R. § 2425.1(a) (either party to an arbitration proceeding may file exceptions to an award). In response, the grievant asserted that he was authorized to file the exceptions and was directed to do so by the Union president. See Response to Order to Show Cause, Attachments 1-6. In these circumstances, and noting that the Agency does not dispute the grievant's standing to file the exceptions, we find that the grievant was authorized to