American Federation of Government Employees, Local 376 (Union) and United States Department of the Interior, Bureau of Land Management (Agency)

[ v62 p138 ]

62 FLRA No. 36

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 376
(Union)

and

UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
(Agency)

0-AR-4004

_____

DECISION

August 22, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Gerald R. Burke filed by the Union under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. Part 2425. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the Agency did not create a hostile work environment in its investigation and discipline of the grievant, and the Agency's decision to suspend the grievant for seven days and reassign him to a different position was proper. Accordingly, the Arbitrator denied the grievance.

      For the following reasons, we dismiss one of the Union's exceptions because it raises matters that could have been, but were not, raised to the Arbitrator, and we deny the remaining exceptions.

II.     Background and Arbitrator's Award

      The Agency determined that the grievant, a lead wrangler at an Agency wild horse facility, had taken Agency hay without permission and had engaged in verbal and physical abuse of his coworkers. Accordingly, the Agency suspended him for seven days and reassigned him to a different position. A grievance was filed, which was unresolved and submitted to arbitration. At arbitration, the parties stipulated the issues as follows:

1.      Whether the agency created a hostile work environment in the details of undertaking an investigation and discipline of the grievant for his unauthorized removal and use of hay.
2.      Whether the agency created a hostile work environment in the details of undertaking an investigation and discipline of the grievant for his abuse of fellow employees and inappropriate action.
3.      Whether the agency properly proposed and decided to suspend the grievant for seven days and re-assign him to a different position as discipline for the findings contained in the investigation and decision by the agency.

Award at 2.

      The Arbitrator stated that the grievant's supervisor testified that her discussions with certain employees confirmed that the grievant was abusive and that employees were uncomfortable with the grievant and would not participate in a particular burro gathering if the grievant was present. In addition, the Arbitrator stated that both the supervisor and an Agency manager testified that employees had informed them that either the grievant or his relative had threatened retaliation if the employees participated in the burro gathering.

      The Arbitrator found that the grievant engaged in verbal and physical abuse against co-workers, which had prompted the Agency to obtain a temporary restraining order (TRO) against the grievant. The Arbitrator also found that the Agency's investigation confirmed the abuse and the fact that the grievant had taken Agency hay without permission. The Arbitrator determined that the Agency's investigation and discipline of the grievant did not create a hostile work environment and were proper, and that the Agency's suspension and reassignment of the grievant was also proper. Accordingly, he denied the grievance.

III.     Positions of the Parties

A.     Union Exceptions

      The Union argues that the Arbitrator's finding that the Agency did not create a hostile work environment is contrary to law (citing Davis v. United States Postal Service, 142 F.3d 1334 (10th Cir. 1998) (Davis)). The [ v62 p139 ] Union also argues that, in obtaining the temporary restraining order against the grievant, the Agency created a hostile work environment and violated the grievant's civil rights. For support, the Union cites court decisions involving 42 U.S.C. § 1983, and asserts that the court's issuance of the temporary restraining order constituted a seizure within the meaning of the Fourth Amendment to the United States Constitution. [n2]  Additionally -- citing 5 C.F.R. § 752.404(f), decisions of the Merit Systems Protection Board (MSPB), and Part 1A(1) of the Agency's Personnel Handbook -- the Union contends that, in disciplining the grievant, the Agency committed error because it considered evidence not set forth in the notice of proposed suspension and denied the grievant due process. [n3] 

      The Union also argues that the award is based on nonfacts. In this connection, the Union claims that the Arbitrator improperly credited the supervisor's testimony that her discussions with certain employees confirmed that the grievant was abusive and that employees would not participate in a particular burro gathering if the grievant was present. The Union also claims that the Arbitrator improperly credited the supervisor's and the manager's testimony that employees had informed them of threatened retaliation if the employees participated in the burro gathering. Additionally, the Union claims that the evidence did not establish the alleged misconduct set forth in the notice of the proposed suspension.

      Further, the Union disputes the award based on several provisions in the parties' collective bargaining agreement, including Articles 17.1 and 10 of the parties' agreement. [n4]  See Exceptions at 5. Additionally, the Union asserts that the Arbitrator violated Article 11.1 of the agreement by failing to make specific findings regarding individual specifications in the notice of proposed discipline and by failing to address evidence that the Agency fabricated or falsified information in obtaining the temporary restraining order. [n5] 

      Finally, citing Authority precedent concerning the standard for determining whether an arbitrator denied parties a fair hearing, the Union claims that the Arbitrator failed to address certain evidence. See Exceptions at 20, 24-25 (citing AFGE, Local 1668, 50 FLRA 124, 126 (1995)). Specifically, the Union asserts that the Arbitrator failed to address: (1) testimony that a particular Agency statement was inaccurate; (2) employees' statements that the Agency provided hay to them for personal use; and (3) evidence regarding damage that the grievant and his family suffered from the Agency's actions. The Union also asserts that the Arbitrator improperly admitted hearsay testimony.

B.      Agency Opposition

      The Agency claims that the Arbitrator correctly determined the Agency did not create a hostile work environment and the Union has not demonstrated that the award is contrary to law. The Agency also claims that the Union's contention regarding due process was not raised before the Arbitrator. Further, the Agency argues that the award is not based on nonfacts and is not contrary to the parties' agreement. Finally, the Agency contends that the Arbitrator did not fail to conduct a fair hearing.

IV.     Preliminary Matter

      The Union asserts that the grievant was denied due process. Under § 2429.5 of the Authority's Regulations, the Authority will not consider arguments that could have been, but were not, presented to an arbitrator. See, e.g., NAGE, 60 FLRA 35, 39 (2004) (declining to consider due process claim not raised below).

      There is no evidence that the Union argued before the Arbitrator that the grievant was denied due process. See Exceptions, Attachments, Tab 2 (Union Post-Hearing Brief). As the Union did not raise due process below, although it could have done so, we dismiss this exception under § 2429.5.

V.     Analysis and Conclusions

A.     The award is not contrary to law.

      The Union claims that the award is contrary to law in various respects. The Authority reviews such claims de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the Arbitrator's underlying factual findings. See id. [ v62 p140 ]

1.     Title VII of the Civil Rights Act of 1964

      The Union argues that the Arbitrator's finding the Agency did not create a hostile work environment is contrary to law, citing a decision addressing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII). See Exceptions at 5 (citing Davis, 142 F.3d 1334). In these circumstances, we construe the Union's claim as alleging that the award is contrary to Title VII. Cf. AFGE, Local 1687, 52 FLRA 521, 522 n.2 (1996) (Authority construed reference to right to "assign" as right to assign work under § 7106(a)(2)(B) of the Statute, as decisions cited by party addressed that right).

      Under Title VII, an employee must establish that an employer "discriminated against [the] individual . . . because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2. With respect to harassment claims under Title VII, there is a violation where the employee has been harassed "because of" or "based on" the employee's status as a member of a protected class. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 63, 64, 66 (1986) (harassment "because of the subordinate's sex" or "based on race" is illegal discrimination); see Turner v. Gonzales, 421 F.3d 688, 695 (8th Cir. 2005), reh'g denied, 2005 U.S. App. LEXIS 24649 (in order to establish prima facie case of harassment, employee must establish membership in a protected group).

      Here, the Union does not claim that the grievant is a member of a protected group or that any alleged harassment of the grievant was causally related to the grievant's membership in such a group. As the Union does not claim one of the basic requirements to establish liability under Title VII, its exception provides no basis for finding that the award is contrary to that statute. Accordingly, we deny the exception.

2.      The Fourth Amendment and 42 U.S.C. § 1983

      The Union alleges that actions taken by the Agency in procuring the temporary restraining order against the grievant, and the court's granting of that order, violated the grievant's civil rights, citing the Fourth Amendment and court decisions involving 42 U.S.C. § 1983. Although the Union raised these arguments before the Arbitrator, see Union Post-Hearing Brief at 20, the Arbitrator did not resolve whether the actions surrounding the temporary restraining order violated the grievant's civil rights. However, there is no basis for finding that the Arbitrator was required to do so. The stipulated issues before the Arbitrator did not include whether obtaining a temporary restraining order violated the grievant's civil rights. See Award at 2. As the Union's allegation does not challenge any findings by the Arbitrator, or any findings that the Arbitrator was required to make, we find that it provides no basis for setting aside the award. [n6]  Accordingly, we deny the exception. [n7] 

3.      MSPB Decisions, 5 C.F.R. § 752.404(f), and the Agency's Personnel Handbook

      The Union argues that, in disciplining the grievant, the Agency erred by considering evidence that had not been set forth in the notice of proposed suspension. The Union cites decisions of the MSPB, 5 C.F.R. § 752.404(f), and Part 1A(1) of the Agency's Personnel Handbook.

      Arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances concerning actions other than those covered by 5 U.S.C. §§ 4303 and 7512. See NAGE, Local R1-109, 46 FLRA 451, 454 (1992) (Local R1-109). The grievant's seven-day suspension and reassignment to a different position did not involve any of the actions covered by 5 U.S.C. §§ 4303 and 7512 or 5 C.F.R. § 752.404(f). [n8]  Moreover, although the grievant alleged that he has been deprived of overtime pay as a result of the reassignment, the reductions in pay referred to in § 7512 involves reductions in base pay, not reductions in premium pay. See Martinez v. MSPB, 126 F.3d 1480, 1482 (Fed. Cir. [ v62 p141 ] 1997). As the grievance did not involve matters covered by §§ 4303 and 7512, the Arbitrator was not bound to apply the same substantive standards as the MSPB in resolving the grievance. See Local R1-109, 46 FLRA at 454. For the same reason, the Union's reliance on Part 1A(1) of the Agency Personnel Handbook is misplaced because that part of the Handbook sets forth guidance and standards concerning §§ 4303 and 7512 matters. See Exceptions, Tab 4 (Agency Handbook) at 1-3.

      For the foregoing reasons, the award is not contrary to MSPB decisions, 5 C.F.R. § 752.404(f), and the Agency's Personnel Handbook, and we deny the exception.

B.      The award is not based on nonfacts.

      To establish that an award is based on a nonfact, the appealing party must demonstrate 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) (Lowry AFB). 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)). Further, a challenge to the weight accorded testimony does not provide a basis for finding an award based on a nonfact. AFGE, Local 2006, 59 FLRA 947, 949 (2004) (Local 2006).

      The Union argues that the Arbitrator erred by crediting the supervisor's and the manager's testimony on certain matters. The Union's argument challenges the weight that the Arbitrator allegedly accorded those witnesses' testimony and, consistent with Authority precedent, does not demonstrate that the award is based on a nonfact. See Local 2006, 59 FLRA at 949. The Union also argues that the evidence did not establish that the grievant committed the acts for which he was disciplined. Before the Arbitrator, the parties disputed this matter. See, e.g., Tr. at 13 (Union opening statement); id. at 339, 340 (Agency opening statement). Accordingly, the Union's argument does not provide a basis for finding the award based on a nonfact. See Lowry AFB, 48 FLRA at 593.

      For the foregoing reasons, we deny this exception.

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

      The Union disputes the award based on several provisions of the parties' agreement, including Articles 10.1, 11.11, and 17.1 of the parties' agreement. We construe the Union as asserting that the award fails to draw its essence from the parties' agreement.

      For an award to be found deficient as failing to draw its essence from the parties' agreement, it must be established 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 agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States DOL (OSHA), 34 FLRA 573, 575 (1990).

      Article 17.1 of the parties' agreement provides that "[b]oth [p]arties agree that a harmonious work environment is the most productive and will strive to prevent conduct or attitudes that will be disruptive of the work environment." Exceptions, Attachment 3 at 23 (collective bargaining agreement). Article 10.1 of the agreement provides, in pertinent part, that a grievance is a complaint "the effect or interpretation or a claim of breach of a collective bargaining agreement[.]" Id. at 10. The Arbitrator found the grievance arbitrable and resolved the Union's claim that the Agency's actions created a hostile work environment. Thus, the Union's claim that the Arbitrator failed to address its hostile work environment claims is unfounded. The Union also has not demonstrated that, in any other way, the award conflicts with Articles 10.1 and 17.1.

      As for Article 11.11, that provision states, in pertinent part, that an arbitrator's award "must contain a detailed explanation of his/her reasoning." Id. at 18. The award contains such a detailed explanation. See Award at 20-24. Although the Union claims that the Arbitrator failed to address evidence, and failed to make specific findings with regard to individual specification in the proposed discipline, Article 11.11 does not impose such requirements. Thus, the Union's claims do not demonstrate that the award is irrational, unfounded, implausible or in manifest disregard of the agreement.

      For the foregoing reasons, we deny this exception.

D.      The Arbitrator did not fail to conduct a fair hearing.

      As the Union's argument that the Arbitrator failed to address certain evidence cites precedent concerning [ v62 p142 ] whether an arbitrator denied parties a fair hearing, we construe the argument as raising a fair hearing claim. We construe the Union's assertion that the Arbitrator erroneously relied on hearsay evidence as raising the same claim. See, e.g., United States DHS, United States Customs & Border Prot., 61 FLRA 113, 115 (2005) (Customs) (Member Armendariz dissenting on other grounds); AFGE, Local 4044, Council of Prisons Local 33, 57 FLRA 98, 100 (2001) (Local 4044).

      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. See Customs, 61 FLRA at 115. Disagreement with an arbitrator's evaluation of the evidence and testimony, including the determination of the weight to be accorded such evidence, provides no basis for finding the award deficient. See United States Dep't of HHS, Ctrs. for Medicare & Medicaid Servs., 60 FLRA 437, 443 (2004) (HHS) (Member Pope dissenting in part on other grounds). Additionally, an arbitrator's failure to discuss the testimony of a witness does not demonstrate that the arbitrator failed to conduct a fair hearing. See AFGE, Local 3615, 57 FLRA 19, 22 (2001). Further, the fact that an arbitrator has relied on hearsay evidence does not demonstrate that the arbitrator failed to conduct a fair hearing. See Customs, 61 FLRA at 115; Local 4044, 57 FLRA at 100.

      The Union's claim that the Arbitrator failed to address certain testimony challenges the Arbitrator's evaluation of the evidence and testimony, including his determination regarding the weight to be accorded such evidence. Consistent with Authority precedent, this claim does not demonstrate that the Arbitrator failed to conduct a fair hearing. See HHS, 60 FLRA at 443. Similarly, the Union's claim that the Arbitrator failed to address the damage that the Agency's actions allegedly caused the grievant and his family does not establish how that matter was "pertinent and relevant" to resolving the grievance such that the Arbitrator's failure to expressly address that evidence prejudiced the Union and affected the fairness of the proceedings as a whole. Accordingly, the Union's claim does not demonstrate that it was denied a fair hearing. Finally, although the Union asserts that the Arbitrator erroneously relied on hearsay testimony, that assertion does not demonstrate that the Arbitrator failed to conduct a fair hearing. See Local 4044, 57 FLRA at 100.

      For the foregoing reasons, we deny the exception.

VI.     Decision

      The Union's exception regarding due process is dismissed, and its remaining exceptions are denied.


Concurring opinion of Chairman Cabaniss:

      While I agree with the resolution of this case, I write separately to address why I would dismiss the Constitutional claims raised in this case on jurisdictional grounds. In United States Dep't of Health & Human Services, Gallup Indian Medical Center, Navajo Area Indian Health Service, 60 FLRA 202 (2004), I questioned in a separate opinion whether a constitutional claim amounts to a grievance under our Statute (§ 7103(a)(9)). The Constitution does not appear to be a "statute or regulation that can be said to have been issued for the very purpose of affecting the working conditions of employees . . . [but] one that merely incidentally does so." United States Dep't of the Treasury, United States Customs Serv. v. FLRA, 43 F.3d 682, 689 (D.C. Cir. 1994) (Customs Serv.) The court noted that "[t]he term `affecting working conditions,' [found in § 7103(a)(9)(ii)] in turn, must have been thought to impose a real limitation on an arbitrator's authority." Id. If the grievance does not involve a statute or regulation issued for the very purpose of affecting the working conditions of employees, then the grievance is "outside both the arbitrator's and the FLRA's jurisdiction." Id. And, regarding that jurisdictional question, "the Authority may question, sua sponte, whether it has subject matter jurisdiction to consider the merits of a dispute." United States Small Bus. Admin., Wash., D.C., 51 FLRA 413, 423 n.9 (1995) (citing to United States Dep't of the Army, Army Reserve Pers. Ctr., 34 FLRA 319 (1990).

      Consistent with my separate opinion in IHS, I would find that constitutional claims raised by a party in an arbitration proceeding, regarding the actions of the other party or the arbitrator involved in that same proceeding, are excluded from the jurisdiction of both the arbitrator and the Authority under §§ 7103(a)(9) and 7122.



Footnote # 1 for 62 FLRA No. 36 - Authority's Decision

   Chairman Cabaniss' separate opinion is set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 36 - Authority's Decision

   In pertinent part, 42 U.S.C. § 1983 imposes liability on certain individuals who cause certain other individuals to be "deprive[ed] of any rights, privileges, or immunities secured by the Constitution and laws[.]" In pertinent part, the Fourth Amendment provides for the right "against searches and seizures" without "probable cause[.]"


Footnote # 3 for 62 FLRA No. 36 - Authority's Decision

   5 C.F.R. § 752.404 sets forth procedures governing removals, suspensions for more than 14 days, reductions in grade or pay, and furloughs for 30 days or less.


Footnote # 4 for 62 FLRA No. 36 - Authority's Decision

   The pertinent wording of Articles 17.1 and 10.1 is set forth infra, section IV.C.


Footnote # 5 for 62 FLRA No. 36 - Authority's Decision

   The pertinent wording of Article 11.11 is set forth infra, section IV.C.


Footnote # 6 for 62 FLRA No. 36 - Authority's Decision

   We note that the Union provides no authority indicating that a federal agency may be liable for violations of 42 U.S.C. § 1983, which applies to actions taken under state law, or that the Fourth Amendment, which protects individuals against unreasonable search and seizures, applies to temporary restraining orders.


Footnote # 7 for 62 FLRA No. 36 - Authority's Decision

   As the Arbitrator did not resolve these issues, we find it unnecessary to address his jurisdiction over them. See 5 C.F.R § 2429.10; United States Gov't. Printing Office, Washington, D.C., 53 FLRA 17, 18 (1997) (resolution of matters not decided in award would be advisory). We note that there is no question of arbitral jurisdiction raised by the parties.


Footnote # 8 for 62 FLRA No. 36 - Authority's Decision

   5 U.S.C. § 4303 addresses "Actions based on unacceptable performance[.]" 5 U.S.C. § 7512 addresses:

(1)      a removal;
(2)      a suspension for more than 14 days;
(3)      a reduction in grade;
(4)      a reducti