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34:0898(150)AR - - VA, Leavenworth, KS and AFGE Local 85 - - 1990 FLRAdec AR - - v34 p898

[ v34 p898 ]
The decision of the Authority follows:

34 FLRA No. 150










February 16, 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 Stanford C. Madden filed by the American Federation of Government Employees, Local 85 (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, Leavenworth, Kansas (the Agency) did not file an opposition to the exceptions.(1)

The Agency reassigned an employee who was the Union vice president from one department to another. The reassignment did not affect the employee's grade or pay. The employee grieved, contending that "the Agency wrongfully and discriminatorily reassigned [her] because of her position as Union vice president." Arbitrator's Award at 1. The Arbitrator found that management's decision to reassign the grievant was not "unreasonable, arbitrary or discriminatory," and he denied the grievance. Award at 27.

For the reasons stated below, the Union's exceptions are denied.

II. Background and Arbitrator's Award

At the end of work on September 17, 1987, the Union vice president and another employee in the laundry department exchanged insults. After the two employees left the Agency's premises, a fight ensued. Subsequently, "there was an attempt by the Agency to secure further information about the incidents of September 17." Award at 11.

On October 15, 1987, the Union vice president was transferred from the laundry to the dietetics department. The other employee was reassigned to the housekeeping department. Neither the Union vice president nor the other employee suffered a loss in grade or pay because of the reassignments.

The Union vice president filed a grievance, signed by 78 unit employees, alleging that the Agency "wrongfully and discriminatorily reassigned [her] because of her position as Union vice president." Award at 1.

The grievance was submitted to arbitration. The Union contended that "the grievant was reassigned discriminatorily, without authority and in violation of employee rights as set forth in Article 10 of the Master Agreement." Award at 16. Article 10 provides in part that "all employees shall be treated fairly and equitably, and without discrimination in all aspects of personnel management, without regard to . . . union activity[.]" Award at 3. The Agency "denie[d] exceeding its authority or that it ha[d] treated the grievant differently from the treatment that has been or would be accorded any other employee."(2) Award at 16.

The Arbitrator concluded that the Union "fail[ed] to establish anti-union animus as an influencing motivation for the Agency's action." Award at 26. The Arbitrator found that "the Agency took non-disciplinary measures in an endeavor to allay the possibility of any recurrences of the bad relations which could escalate to the detriment of all concerned." Award at 23. The Arbitrator also concluded that "[r]eassignment is a management right" and "[t]he decision of management must be upheld unless it [is] unreasonable, arbitrary or discriminatory, which this reassignment was not." Award at 27.

The Arbitrator denied the grievance.

III. Position of the Union

The Union contends that the Arbitrator's award violates law, rules, regulations, and the parties' collective bargaining agreement. The Union asserts that the Arbitrator:(3)

(1) should have found that the reassignment was impermissible because "testimony by the Union proved beyond a shadow of doubt that the re-assignment was indeed discriminatory, arbitrary and unreasonable" (Exceptions at 1);

(2) violated the Statute by "not allow[ing] all 78 grievants to process the grievance . . . when he refused to recognize any of the grievants except [the Union vice president]" (id.);

(3) did not allow all witnesses to testify (id.);

(4) did not find the presence of union animus despite testimony to the contrary (id.);

(5) failed to find that reassignment of the grievant to a filled position violated rules, Agency regulations, and the parties' collective bargaining agreement (id. at 1-2);

(6) failed to establish a burden of proof on the Agency (id. at 2);

(7) "breached the Arbitrator[']s 'Code of Ethics'" when he failed to address the issues (id.);

(8) failed to review the evidence or the transcripts (id.); and

(9) failed to take into account the fact that the grievant was in a protected status at the time of the incident because she was on official time. (Id.)

IV. Discussion

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 it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations.

The Union's assertions set forth above as numbers 5 and 8 constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence before him and with his interpretation of the agreement. Disagreement with an arbitrator's interpretation of a collective bargaining agreement or an arbitrator's evaluation of the evidence provides no ground for finding an arbitration award to be deficient. 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).

In assertions 2 and 3, the Union takes issue with the Arbitrator's conduct of the hearing. The Union's argument provides no basis for finding the award deficient. Although an arbitration award is deficient if it is the product of a hearing that is found to have been unfair, an arbitrator has considerable latitude in the conduct of a hearing. Thus, the mere 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, 332 (1988).

In this case, the Union has failed to establish that the Arbitrator's failure either to "recognize" all the signers of the grievance or to allow other witnesses to testify resulted in an unfair hearing. With regard to the former contention, it is clear that the 78 additional grievants had signed the grievance solely in support of the Union vice president and that they had no independent grievances in addition to that addressed by the Arbitrator involving reassignment. With regard to the Arbitrator's alleged refusal to allow all witnesses to testify, we note that in fact there were 42 witnesses who testified in a hearing that extended over 7 days. Award at 16. Further, the Arbitrator appears to have allowed the testimony of key witnesses to the events underlying the grievance.

The Union's claim that the Arbitrator failed to establish a burden of proof on the Agency (assertion 6) also provides no basis for finding the award deficient. Unless a specific burden of proof is required, an arbitrator may establish and apply whatever burden the arbitrator considers appropriate. Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council, 30 FLRA 484 (1987).

The Union contends in assertion 7 that the Arbitrator "breached the Arbitrator[']s 'Code of Ethics[.]'" The Union does not further identify the "Code of Ethics" to which it refers. There exists a Code of Professional Responsibility for Arbitrators of Labor-Management Disputes (the Code), approved April 28, 1975 by the National Academy of Arbitrators, the American Arbitration Association, and the Federal Mediation and Conciliation Service. The Code is a privately developed set of standards for professional behavior and is designed to guide impartial third parties in labor dispute resolution. 64 Lab. Arb. (BNA) 1317, 1319 (1975). The Code is not a law, rule, or regulation within the meaning of section 7122(a) of the Statute on which exceptions to an arbitration award can be predicated. See Oklahoma City Air Logistics Command, Tinker Air Force Base and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA No. 95, slip op. at 5 (1990). Accordingly, the Union's contention that the Arbitrator violated the Code provides no basis on which the award can be found deficient.

Finally, as to assertions 1, 4 and 9, the Union has presented no basis to conclude that the Arbitrator erred either with respect to his consideration of the grievant's status at the time of the incident or his finding that union animus was not "an influencing motivation for the Agency's action." Award at 26.

The Arbitrator found that "there were no acts of the Agency which evidenced that they should be attributed to anti-union motives rather than the legitimate pursuits of the Agency" and that union animus was not "an influencing motivation for the Agency's action" (Award at 26). The Union's contentions that the Arbitrator should have found otherwise constitute nothing more than disagreement with the Arbitrator's: (1) findings of fact; (2) evaluation of the evidence; and (3) reasoning and conclusions. These contentions provide no basis for finding the award deficient. See, for example, Veterans Administration Medical Center, Kansas City, Missouri and American Federation of Government Employees, Local No. 2663, 27 FLRA 316, 317 (1987). Accordingly, we reject assertions 1, 4, and 9.

V. Decision

The Union's exceptions are denied.

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

1. The Authority notes that during the pendency of this case, the Veterans Administration was reestablished as the Department of Veterans Affairs.

2. The Agency contended that the grievance was not arbitrable because the Union failed to process the grievance through the third step of the grievance procedure. The Arbitrator found that the grievance was arbitrable. The Agency did not except to the Arbitrator's finding of arbitrability.

3. We have assigned numbers to the Union's exceptions for the convenience of the reader.