40:1012(87)AR - - Federal Employees Metal Trades Council and Navy, Long Beach Naval Shipyard Long Beach, CA - - 1991 FLRAdec AR - - v40 p1012
[ v40 p1012 ]
The decision of the Authority follows:
40 FLRA No. 87
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Spencer M. Howard. The Arbitrator denied a grievance disputing the 10-day suspension of the grievant for on-the-job carelessness.
The Union filed exceptions to the award 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 Agency did not file an opposition to the Union's exceptions.
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a journeyman welder, was assigned to assist in "applying heat to a deck socket . . . by use of a torch." Award at 1. The grievant did not determine whether the area was free of gas before applying heat to the deck socket. As a result, an explosion occurred and a co-worker was injured.
After receiving a 10-day suspension for failing to determine whether the area was free of gas, the grievant filed a grievance. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue as follows:
[W]hether the ten days' suspension of the grievant . . . should stand or be reversed.
The Arbitrator stated that Article 25, Section 1 of the parties' collective bargaining agreement provides that "[i]t is agreed that employees have the responsibility in observing safety precautions and will strive to develop safe work habits . . . ." Id. at 2. The Arbitrator also stated that Agency procedures require that a "'green' tag" be dated and placed on an enclosed tank to indicate that the area is free of gas and that employees are to check the tag before beginning work. Id. The Arbitrator found, however, that the grievant did not check the green tag before starting to weld. The Arbitrator noted that the grievant had taken safety training and was aware of the Agency's safety procedures for working on an enclosed tank.
The Arbitrator considered the Union's arguments that "part of the blame for [the] accident should be placed on Supervision" as well as the Union's request that the hearing be reopened "so that Federal Regulation, Title 29, might be introduced." Id. at 3. The Arbitrator concluded, however, as follows:
While these contentions are good, in the final analysis if the grievant had not violated the safety regulations, the accident might not have occurred. Grievant is a journeyman welder with several years' experience and should have known the consequences for violating the safety rules.
Id. Accordingly, the Arbitrator sustained the 10-day suspension.
III. Union's Exceptions
The Union argues that it is not an employee's responsibility to determine whether it is safe to light a torch. According to the Union, regulations of the Occupational Safety and Health Administration (OSHA), 29 C.F.R. § 1910.252, apply in this case and are "very clear" that the supervisor is responsible for inspecting the job site. Brief in Support of Exceptions at 2.
In addition, the Union asserts that a number of procedural errors occurred in the hearing which "caused the grievant to present his case under unacceptable conditions." Exceptions at 2. In particular, the Union objects to the Arbitrator's requirement that the Union present its case before the Agency and the Agency's failure to make two Union witnesses available for the arbitration hearing.
IV. Analysis and Conclusions
We reject the Union's assertion that the award is contrary to 29 C.F.R. § 1910.252(xiv)(a), (b), (d), and (e), because, under that provision, a supervisor is required to ensure "it is safe to weld or light a torch."(*) Brief in Support of Exceptions at 1. Nothing in this regulation indicates that the Agency's safety requirements, including the requirement that the "green card" be checked, are improper. Moreover, nothing in the regulation indicates that an employee may not be disciplined for failing to observe safety requirements. Accordingly, the Arbitrator's findings that, pursuant to the parties' agreement, the grievant was responsible for observing, and failed to observe, safety precautions is not contrary to 29 C.F.R. § 1910.252 and the award is not deficient on this basis.
We construe the Union's assertions regarding alleged procedural errors by the Arbitrator as an exception that the Arbitrator denied the Union a fair hearing. The Authority will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing. See, for example, Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 351 (1990). An arbitrator has considerable latitude in the conduct of a hearing, however, 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. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1178 (1990).
We conclude that the Union has not demonstrated that the Arbitrator's requirement that the Union present its case before the Agency or the Agency's failure to make certain witnesses available denied the Union an opportunity to adequately present its case or prevented it from submitting pertinent and material evidence.