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32:0754(108)AR - - Navy, Finance Center and AFGE Local 3283 - - 1988 FLRAdec AR - - v32 p754

[ v32 p754 ]
The decision of the Authority follows:

32 FLRA No. 108






Case No. 0-AR-1504


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Phillip-Harold Marshall. The Arbitrator found that the Agency had not violated the parties' collective bargaining agreement when it terminated the appointment of a temporary employee.

The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. No opposition was filed by the Agency.

We conclude that the Union has not established that the Arbitrator's award is contrary to law, regulation, or the parties' collective bargaining agreement. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

In September 1986, Calvin A. Schunemann, Jr., was hired as a mail clerk on a 6-month, temporary appointment. Among Mr. Schunemann's duties was the transfer of case documents to microfilm. Another temporary employee was hired at the same time to perform the same duties. Shortly after the employees were hired, the Agency decided to phase out the microfilming project. In light of this decision, the Agency concluded that it was no longer necessary to retain two employees. On October 24, 1986, Mr. Schunemann was given a notice of termination with an effective date of November 7, 1986.

The Union argued before the Arbitrator that Mr. Schunemann's termination was in reprisal for a grievance he had filed on October 15, 1986. That grievance related to the assignment of overtime work. The Agency argued before the Arbitrator that the decision to terminate Mr. Schunemann was made prior to the filing of the grievance and was based on workload considerations. The decision to retain the other employee, not Mr. Schunemann, was based on management's assessment that the other employee was a better worker.

The Arbitrator concluded that the termination was not in reprisal for the filing of the October 15 grievance and that the Agency had not otherwise acted in an arbitrary, capricious or discriminatory manner when it terminated Mr. Schunemann's appointment. Award at 6. In reaching this result, the Arbitrator credited the testimony of the Agency's witnesses in assessing the reasons why Mr. Schunemann's appointment was terminated. The Arbitrator noted management's determination that the microfilming process had become costly and ineffective and that the subsequent decision to phase out that process necessitated a reduction in staff--the termination of Mr. Schunemann's appointment. Award at 7. Finally, the Arbitrator concluded that the Agency had properly exercised its discretion with regard to management's rights to select, assign work, lay-off and hire when it made its determinations. Id.

III. Exceptions

The Union raises five exceptions to the award. First, the Union argues that the Arbitrator was biased, as evidenced by his consistent rulings in favor of the Agency, particularly as to the credibility of the Union's witnesses at the arbitration hearing. Second, the Union alleges that the award was based on nonfacts or erroneous facts. Third, the Union argues that the Arbitrator exceeded his authority by addressing a question not before him. More particularly, the Union argues that the Arbitrator erroneously characterized Mr. Schunemann's requested remedy. Fourth, the Union claims that the Arbitrator refused to admit pertinent and material evidence in the nature of medical documentation. Fifth, the Union asserts that the award is inconsistent with the parties' collective bargaining agreement.

IV. Discussion

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by the Federal courts in private sector labor relations cases. Rather, the Union's contentions constitute nothing more than disagreement with the Arbitrator's findings of fact, evaluation of the evidence and credibility determinations. See, for example, Metropolitan Correctional Center and American Federation of Government Employees, Local 3652, 31 FLRA 1059 (1988) (contentions that arbitrator did not evaluate evidence properly and that she exceeded her authority provided no basis for finding the award deficient); American Federation of Government Employees, Local 2610 and Veterans Administration Medical and Regional Office Center, Togus, Maine, 30 FLRA 1153 (1988) (exceptions disagreeing with arbitrator's findings of fact, evaluation of evidence, and manner in which he conducted the hearing did not provide basis for finding the award deficient); and American Federation of Government Employees, Local 171 and Federal Correctional Institution, El Reno, Oklahoma, 30 FLRA 295 (1987) (exceptions constituting disagreement with an arbitrator's evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, provide no basis for finding an award deficient).

V. Decision

The Union's exceptions are denied.

Issued, Washington, D.C.,

Jerry L. Calhoun, Chairman
Jean McKee, Member

(If blank, the decision does not have footnotes.)