National Federation of Federal Employees, Local 858 (Union) and United States Department of Agriculture, Kansas City Risk Management Agency, Kansas City, Missouri (Agency)

[ v63 p227 ]

63 FLRA No. 86

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
LOCAL 858
(Union)

and

UNITED STATES
DEPARTMENT OF AGRICULTURE
KANSAS CITY RISK MANAGEMENT AGENCY
KANSAS CITY, MISSOURI
(Agency)

0-AR-4216

_____

DECISION

April 17, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert Bailey 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 that the Agency's suspension of the grievant was for just cause. For the reasons set forth below, we dismiss the Union's exception regarding formal discussion and deny the Union's remaining exceptions.

II.     Background and Arbitrator's Award

      The Agency issued the grievant a proposed fourteen-day suspension for "[k]nowingly making incorrect entries on employee attendance logs" and "[f]ailure to follow procedures for requesting leave." Award at 7 (citing Jt. Ex. 3). In determining that the grievant falsified her time and attendance logs, the Agency considered the grievant's key card entry readings from the building entrance logs, information from the grievant's supervisors, and the grievant's own time and attendance logs. The Agency reduced the proposed fourteen-day suspension to a ten-day suspension. The Union filed a grievance alleging that the suspension was not for just cause and that the Agency never advised the grievant of her "due process" rights by failing to inform the grievant that she was entitled to Union representation when she was responding to the proposed suspension. Id. at 12.

      The grievance was not resolved and was submitted to arbitration. The Arbitrator set forth the issue as: "whether the [ten-]day suspension disciplinary action taken against the [g]rievant . . . was based on just cause; and, if not, what is the appropriate remedy?" Id. at 2. The Arbitrator found that the facts and circumstances of this case indicated that the Agency had just cause for issuing the grievant a ten-day suspension. Id. at 13.

      The Arbitrator stated that the Agency had a right to establish rules governing time and attendance and that there was "nothing unreasonable about the Agency's requirement that employees report accurately their arrival and departure times each workday[.]" Id. at 14. The Arbitrator found that the grievant had been notified at least twice in the four-month period preceding her suspension that she must accurately complete her time and attendance records. He further held that the "the [g]rievant knew or should have known that ignoring [her supervisor's] repeated instructions [would] lead to additional corrective steps, including disciplinary action." Id.

      The Arbitrator rejected the Union's argument that a 1985 Memorandum of Understanding (MOU) between the parties prohibits the Agency's use of entrance logs into the building as evidence in support of its charges against the grievant. Id. at 14. The Arbitrator noted that the "reasonable interpretation of the intention of this [MOU] is not to deny management's access to information contained on the key cards but to prohibit the use of key cards as an alternative to the use of time clocks or time and attendance cards as a means of employees' reporting their worktime." Id. at 15 (emphasis in original).

      The Arbitrator also found that the grievant's discipline was not inconsistent with past practices or actions taken against similarly situated employees. Although the Agency was "lax" in enforcing the rule that employees must accurately fill out their time and attendance logs, the Arbitrator found that, unlike other employees, the grievant had been notified twice by her supervisor to discontinue submitting inaccurate time sheets. Id. at 15. Further, the Arbitrator found that there was no evidence that the grievant had been discriminated against. Id. The Arbitrator also found that the ten-day suspension was not unreasonable under the Agency's Guide for Disciplinary Penalties, which provides for disciplinary [ v63 p228 ] action in the range of a letter of reprimand to removal for the charge against the grievant. Id. at 16.

      In addition, the Arbitrator rejected the Union's argument that the grievant had been denied due process. Noting that the right to Union representation at an investigatory examination is only "trigger[ed]" when an employee requests representation, the Arbitrator held that the grievant had been accorded her due process rights because she never requested Union representation before or during her initial meeting and when the grievant had her subsequent discussion with the Agency, she was accompanied by Union representatives. Id.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union alleges that the award is contrary to law because the Union was not given notice and an opportunity to be represented at a "formal discussion" between the Agency and the grievant in violation of 5 U.S.C. § 7114(a)(2)(A). Exceptions at 5. The Union notes that it is not disputing that it was present at the discussions following the initial meeting, but instead argues that the initial meeting was a "formal discussion" and therefore, the grievant was entitled to representation at that meeting. In this regard, the Union argues that in denying her representation at that initial meeting, the grievant was denied due process regarding the disciplinary action taken against her.

      The Union also argues that the Arbitrator's award is based on the following nonfacts: (1) the grievant had been instructed twice not to submit inaccurate time and attendance logs; (2) the grievant had been told if she wanted to dispute the charges she could write a response letter to her second-line supervisor; and (3) shortly after the grievant was hired, her Union representative introduced herself to the grievant. Id. at 7-9. The Union alleges that the Arbitrator erroneously relied on the first and third facts to support a finding that the grievant was suspended for just cause and the second fact to find that the grievant's due process rights were not compromised. Id.

      The Union also argues that the award is contradictory so as to make implementation impossible. In this regard, the Union asserts that the Arbitrator found both that the grievant had notice of the possible disciplinary consequences of continuing to submit inaccurate time and attendance logs and that the grievant's supervisor acknowledged that he did not specifically warn the grievant of possible disciplinary action. Exceptions at 6-7.

      Further, the Union asserts that the Arbitrator exceeded his authority by resolving an issue not submitted to arbitration and by "disregarding specific limitations on his authority." Id. at 11. In this regard, the Union asserts that the Arbitrator exceeded his authority by interpreting the MOU, which it claims was not an issue submitted to arbitration. Id. The Union also claims that the Arbitrator exceeded his authority by "speculati[ng]" about what the grievant "should have known" with respect to possible discipline. Id. at 12.

      In addition, the Union contends that the award fails to draw its essence from Article 20.1.B of the parties' agreement, which provides that "[d]isciplinary actions must be based on just cause, be consistent with applicable laws and regulations, and be fair and equitable." Id. at 6.

      Finally, the Union argues that the Arbitrator failed to provide a fair hearing by refusing to allow the Union to introduce evidence regarding the grievant's first-line supervisor's key card entry discrepancies. Id. at 9. The Union also claims that the Arbitrator denied it a fair hearing by crediting the allegedly "false statements" of the Agency witnesses over the grievant. Id. at 11.

B.     Agency's Opposition

      The Agency asserts that the Arbitrator correctly denied the grievance using the information and testimony before him, finding that the grievant failed to follow leave request procedures and record accurate entries on her time and attendance logs. The Agency also alleges that the Union failed to demonstrate that the award is based on nonfacts, but for which the Arbitrator would have reached a different result. Opposition at 1-2. Further, the Agency contends that the award does not fail to draw its essence from the parties' agreement, contending that the Union's arguments "merely constitute disagreement" with the reasoning of the Arbitrator that the grievant's discipline was for just cause. Id. at 1-2. The Agency also argues that the Union failed to show that the Arbitrator exceeded his authority when he examined the charges and states that the Arbitrator's award did not add to, subtract from, or modify any terms of the parties' agreement. Finally, the Agency asserts that the Union's argument regarding a fair hearing is merely an attempt to relitigate the merits of the grievance before the Authority. Id. at 1.

IV.     Preliminary Issue

      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. See, e.g., United States Dep't of the Air Force, Air Force Materiel [ v63 p229 ] Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). The Union argues that it was denied the right to be represented at a "formal discussion." Exceptions at 5. However, before the Arbitrator, the Union argued only that the grievant was denied her Weingarten rights under § 7114(a)(2)(B) of the Statute. [n1]  Award at 12, 16. Further, the Arbitrator only addressed Weingarten rights under § 7114(a)(2)(B) and the issue before the Arbitrator did not include an issue related to formal discussion. Id. at 16, 2. As there is no evidence in the record that the Union's argument regarding formal discussion was raised before the Arbitrator, the Union's exception regarding formal discussion is dismissed. [n2] 

V.     Analysis and Conclusion

A.     The Arbitrator's 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 NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.

      The Union asserts that the Arbitrator erred in finding that: (1) the grievant had been instructed twice not to submit inaccurate time and attendance logs; (2) the grievant was told at her investigatory interview that, if she wanted to dispute the charges, then she could write a response letter to her second-line supervisor; and (3) shortly after the grievant was hired, her Union representative introduced herself to the grievant. Exceptions at 7-9. The award and the transcript excerpts submitted by the Union in support of its nonfact exceptions establish that the parties disputed before the Arbitrator: (1) what transpired at the two meetings between the grievant and her supervisor to discuss her time and attendance logs; (2) what the grievant was told at the initial meeting; and (3) whether the Union representative introduced herself to the grievant. Award at 11-13; Exceptions, Attachs. As such, the Union's exceptions provide no basis for finding the award deficient. NFFE, Local 1984, 56 FLRA at 41.

      Further, we construe the Union's claims that: (1) the award is contradictory because the Arbitrator found both that the grievant had notice of the possible disciplinary consequences of her actions and that the grievant's supervisor acknowledged that he did not specifically warn the grievant of possible disciplinary action, Exceptions at 6; and (2) the Arbitrator exceeded his authority by "speculati[ng]" about what the grievant "should have known" with respect to possible discipline, id. at 12, as claims that the award is based on nonfact. Specifically, we construe these claims as challenging the Arbitrator's finding that the grievant was on notice of the possible disciplinary consequences of continuing to submit inaccurate time and attendance logs because she "knew or should have known that ignoring [her supervisor's] repeated instructions could lead to corrective steps, including disciplinary action." Award at 14. As the record establishes that the parties disputed before the Arbitrator whether the grievant had notice of the possible disciplinary consequences of her actions, id. at 12, the Union's exceptions provide no basis for finding the award deficient. NFFE, Local 1984, 56 FLRA at 41.

      Accordingly, we deny the Union's exceptions.

B.     The Arbitrator did not exceed his authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See United States Dep't of the Army, Corps of Engineers, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997). However, arbitrators do not exceed their authority by addressing [ v63 p230 ] an issue that is necessary to decide a stipulated issue, NATCA, MEBA/NMU, 51 FLRA 993, 996 (1996), or by addressing an issue that necessarily arises from issues specifically included in a stipulation. See Air Force Space Div., L.A. Air Force Station, Cal., 24 FLRA 516, 519 (1986). Further, an arbitrator does not exceed his authority by resolving issues closely related to the issue giving rise to the grievance. See SSA, Balt., Md., 57 FLRA 181, 183 (2001) ("Read in the context of the record as a whole, the issue as construed by the [a]rbitrator reflects the [a]rbitrator's interpretation of what . . . issues needed to be addressed to resolve the grievance.").

      Here, the Union asserts that the Arbitrator exceeded his authority by resolving an issue not submitted to arbitration because he interpreted the MOU submitted by the Union in support of its position that the Agency could not be permitted to use the key card logs as evidence. At the hearing, the Union and the Agency disputed the interpretation of the MOU and the Arbitrator found that the MOU did not preclude the Agency from using the key card entry logs in evaluating the grievant's time and attendance records. The interpretation of the MOU was an issue closely related to whether the Agency had just cause to discipline the grievant, and, as such, was integral to the resolution of the grievance. See id. Accordingly, we find that the Arbitrator did not exceed his authority.

      Consequently, we deny the Union's exception. [n3] 

C.     The Arbitrator's award does not fail to draw its essence from the parties' agreements.

      In reviewing an arbitrator's interpretation of the parties' agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the parties' 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 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 Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Union asserts that the Arbitrator's interpretation of the MOU "is flawed and modifies the terms of the [parties'] agreement[.]" Exceptions at 11. We construe this assertion as a claim that the award fails to draw its essence from the MOU. The MOU provides that "[k]ey cards are for security purposes and are not to be used for time clocks or time and attendance." Exceptions, MOU, Attach. 10. The Arbitrator held that "[t]he reasonable interpretation of the intention of this [MOU] is not to deny management's access to information contained on the key cards but to prohibit the use of key cards as an alternative to the use of time clocks or time and attendance cards as a means of employees' reporting their worktime." Award at 15 (emphasis in original). As the Union has failed to establish that the Arbitrator's interpretation of the MOU is irrational, implausible, or in manifest disregard of the agreement, we deny the exception. See United States Dep't of Veterans Affairs, Med. Ctr., N. Chicago, Ill., 52 FLRA 387, 395 (1996) (VAMC, N. Chicago).

      The Union also asserts that the award fails to draw its essence from Article 20.1.B of the parties' agreement, which states that "[d]isciplinary . . . actions must be based on just cause[,]" because the Arbitrator incorrectly applied that standard in his review of the facts. Award at 4. Specifically, the Union argues that the Arbitrator erred in finding that "the employee had notice of possible disciplinary consequences[.]" Exceptions at 6. Having found above that the Arbitrator's factual finding in this regard is not deficient, the Union has failed to establish that the Arbitrator's interpretation of Article 20.1.B is irrational, implausible, or in manifest disregard of the agreement. See VAMC, N. Chicago, 52 FLRA at 395.

      Accordingly, we deny the Union's exceptions.

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

      An award will be found deficient on the ground that an arbitrator failed to provide a fair hearing where a party demonstrates 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 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 [ v63 p231 ] 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. See AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996).

      Here, the Union alleges that the Arbitrator failed to provide a fair hearing by refusing to allow the Union to introduce the grievant's supervisor's time and attendance records into evidence. The Arbitrator found that those records were irrelevant in the consideration of whether there was just cause to discipline the grievant regarding her time and attendance inaccuracies. Exceptions, Attach. 11, Tr. at 53. The Union has not demonstrated that the disputed evidence is pertinent and material such that the Arbitrator's refus