34:0734(127)AR - - VA and VA Medical Center Register Office and AFGE Local 1509 - - 1990 FLRAdec AR - - v34 p734
[ v34 p734 ]
The decision of the Authority follows:
34 FLRA No. 127
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION AND
VA MEDICAL CENTER REGISTER OFFICE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Robert Gunderson filed by Local 1509, American Federation of Government Employees (the Union) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Veterans Administration and VA Medical Center Register Office (the Agency) filed an opposition to the exceptions.(*)
The Union filed a grievance alleging that the Agency violated Article 25 of the parties' collective bargaining agreement by failing to pay pharmacy technicians hazardous duty pay. Article 25 provides for hazardous duty pay to employees who are exposed to hazardous working conditions. The Arbitrator found that the Union failed to prove by a preponderance of the evidence that employees were exposed to hazardous working conditions and he denied the grievance.
For the reasons stated below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
In February 1985, the Agency moved a Baker Vertical Laminar Flow Hood (Hood) from the second floor to the fourth floor of the Agency's hospital. The Hood is used to "take care of any spills and to filter the air" when pharmacists mix toxic drugs. Award at 15. The Agency did not notify the Union in advance of the move.
The Hood was moved into an area where pharmacy technicians perform their work and remained there for approximately 8 or 9 months until it was moved and installed in the basement of the hospital.
In February 1988, the grievant, a pharmacy technician and Union steward, filed a grievance requesting hazardous duty pay for the pharmacy technicians in the pharmacy.
The Arbitrator stated the issue before him as follows:
Was the Veterans Administration in violation of the Master Agreement between the Veterans Administration and the Union, and applicable laws and regulations when they refused to give back pay to the grievant . . . and to other pharmacy technicians?
If so, what shall the remedy be?
Award at 4.
The Union contended that the Agency violated the contract by: (1) not notifying the Union that the Hood was to be moved from the second floor to the fourth floor, thereby creating a dangerous workplace for pharmacy technicians; and (2) not paying hazardous duty pay to the pharmacy technicians for working in an area where there have been accidents and spills involving hazardous materials. The Union asserted that the grievance was timely because the contract "states that you can file a grievance when you become aware that there is a grievance." Award at 7.
The Agency argued that: (1) the grievance was untimely; (2) the grievant failed to prove that he was entitled to hazardous duty pay; and (3) it had no duty to inform the Union of the decision to move the Hood. Award at 7-8.
The Arbitrator found that the Agency did not violate Article 6, Section 6 of the parties' agreement when it failed to notify the Union that it was moving the Hood from the second floor to the fourth floor. That provision requires the Agency to notify the Union prior to changing conditions of employment which affect unit employees. The Arbitrator determined that there were no changes in conditions of employment because: (1) technicians' duties remained the same; and (2) moving the Hood did not increase the hazard to pharmacy technicians. Award at 14.
The Arbitrator found that the proximity of the Hood to the pharmacy technicians' work area was not a safety hazard. He found that it was "uncontradicted that both the safety departments of the Veterans Administration and all of the regulations of OSHA [Occupational Safety and Health Administration] find that the Hood does satisfactorily meet the standard of eliminating sufficient amounts of the drugs mixed in the Hood to make it safe for personnel to be in, near and around the Hood." Award at 15. The Arbitrator determined that hazards were reduced to a minimum. Award at 17.
The Arbitrator concluded that the grievant "has not met the burden of proving by a preponderance of the evidence that use of the Baker Vertical Laminar Flow Hood was hazardous to pharmacy technicians during the time frame covered by this grievance[.]" Award at 19. He also concluded that the grievant failed to meet the burden of proof of showing incidents of accidents or spillage or other hazardous activity. Finally, the Arbitrator found that "the grievant was aware, or should have been aware of all of the conditions that he complains of from 1985 to the present time." Id.
The Arbitrator denied the grievance.
III. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to law, rules, regulations and the parties' agreement. The Union asserts that the Arbitrator:
(1) exceeded his authority by allowing "management to establish the fact that if they had to pay hazardous pay to the pharmacy technicians at this station, the Veterans Administration would have to pay it to all of the pharmacy technicians" (Exceptions at 6);
(2) issued an award that did not draw its essence from the collective bargaining agreement because he failed to find that the grievant was entitled to hazardous duty pay under Office of Personnel Management (OPM) regulations as required by that agreement (id. at 7);
(3) issued an award that was incomplete because it failed to address the question of whether management violated Article 6, Rights & Responsibilities, Section 6, Notifications of Changes in Conditions of Employment (id. at 7-8);
(4) issued an award based on a nonfact because he "insinuated" that 10 witnesses were not "creditable" when they testified that they witnessed leakage or spills (id. at 8);
(5) was biased against the Union because he stated that the Union was not handling the case properly and that the Union should have hired an attorney (id.); and
(6) failed to give the grievant a fair and impartial hearing because he did not accept any of the evidence which was presented by the testimony of Union witnesses (id. at 8-9).
IV. Agency's Opposition
The Agency contends that the Union has presented no basis on which to find the Arbitrator's award deficient. The Agency claims that the Arbitrator found that the grievant was not entitled to hazardous duty pay under OPM regulations because he found that there was no potential for injury. The Agency asserts that the Arbitrator considered Article 6 of the parties' agreement and found that the provision did not apply because conditions had not changed. The Agency also asserts that there was no showing of bias and that the Union's attempt to argue bias is an attempt to relitigate the case.
The Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.
We reject the Union's argument that the Arbitrator failed to address Article 6 of the parties' agreement and that the award, therefore, was incomplete. The Arbitrator considered Article 6 and found that moving the Hood from the second to the fourth floors did not change the duties of pharmacy technicians. Award at 14. The Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation of the agreement. See, for example, Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, Oklahoma City, Oklahoma, 30 FLRA 20 (1987) (exceptions which constitute nothing more than disagreement with an arbitrator's interpretation of an agreement provide no basis for finding an award deficient).
We also reject the Union's exceptions alleging that the Arbitrator exceeded his authority and failed to conduct a fair and impartial hearing. The liberal admission by arbitrators of testimony and evidence is a permissible practice. See National Border Patrol Council and National Immigration and Naturalization Service Council and United States Department of Justice, Immigration and Naturalization Service, 3 FLRA 401 (1980) (an exception contending that the arbitrator should have excluded certain evidence provided no basis for finding the award deficient because liberal admission of testimony and evidence is the usual practice in arbitration). See also National Federation of Federal Employees, Local 1745 and Veterans Administration, 27 FLRA 347 (1987); Veterans Administration Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 469 (1981). An arbitrator has considerable latitude in the conduct of a hearing, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not in and of itself provide a basis for finding an award deficient. Library of Congress and American Federation of State, County and Municipal Employees, Local 2910, 32 FLRA 330 (1988).
The Union's arguments in support of its claim that the award failed to draw its essence from the collective bargaining agreement do not establish that the award is deficient. The Arbitrator found that because the Union had not provided evidence sufficient to establish that the grievant could potentially suffer serious injury from working in the vicinity of the Hood or from carrying the drugs and chemicals to the dispensing stations, the grievant was not entitled to hazardous duty pay. Award at 14-17. The Union's exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence before him. Disagreement with an arbitrator's evaluation of the evidence provides no basis for finding an arbitration award to be deficient. Tinker Air Force Base at 21.
The Union's arguments in support of its claim that the Arbitrator's award is based on a nonfact also do not establish that the award is deficient. When a party contends that an arbitrator's award is deficient because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is erroneous and is a gross mistake of fact, but for which a different result would have been reached. See, for example, U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168 (1988). The Union, however, points to no specific factual finding of the Arbitrator as the basis of its exception. Rather, the Union disputes the Arbitrator's determination that Union witnesses were not credible. The Union's exception constitutes disagreement with the Arbitrator's evaluation of the evidence and testimony presented at the hearing and does not provide a basis for finding the award deficient. See Department of the Air Force, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 32 FLRA 193, 195 (1988).
We reject the Union's claim that the Arbitrator was biased. The Union has provided no substantiation that there was partiality or corruption on the part of the Arbitrator or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced. See Veterans Administration, Winston-Salem, N.C. and American Federation of Government Employees, Local 2880, 27 FLRA 44 (1987).
Finally, we note that based on the rationale and conclusions of the U.S. Court of Appeals for the District of Columbia Circuit in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988), the Authority has held that the Agency has no obligation to bargain over the conditions of employment of professional medical employees of the Department of Medicine and Surgery subject to 38 U.S.C. º 4108(a). U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA No. 29, slip op. at 3, 4 (1990). There is no claim by the parties that the grievant was a professional medical employee of the Department of Medicine and Surgery subject to 38 U.S.C. º 4108(a). Therefore, we assume for the purposes of this decision that the