45:0210(15)AR - - Navy, Naval Educational and Training Program Development Center, Management Support Activity, Naval Air Station, Pensacola, FL and AFGE Local 1960 - - 1992 FLRAdec AR - - v45 p210
[ v45 p210 ]
The decision of the Authority follows:
45 FLRA No. 15
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 Jack R. George filed by 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 Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance contesting the Agency's failure to grant an employee's request for a transfer. 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, an Education Specialist, is able to use "only one arm because of the effects of cerebral palsy." Exceptions at 1. When computers were introduced into his division, the grievant requested the Agency to transfer him to another position. Thereafter, the grievant filed a grievance requesting the Agency to remove certain statements from his performance appraisal and requesting a transfer to a particular organizational division. In response, the Agency removed the disputed statements from the appraisal. In addition, although the Agency denied the specific transfer requested by the grievant, the Agency did transfer the grievant to a different branch.
The Union maintained that the transfer effected by the Agency "was not a transfer to accommodate the [g]rievant's handicap, but was a change involving other employees for organizational purposes" and submitted the matter to arbitration. Award at 4. In the absence of a stipulation by the parties, the Arbitrator framed the issue, as relevant here, as follows:
[D]id the Agency's actions accommodate within reason the handicap restrictions of the Grievant, or did those actions violate the negotiated agreement, or any law, rule, or regulation. If so what shall the remedy be.
Id. at 2.
The Arbitrator found that the Agency "compl[ied] with the regulations and policy requiring [it] to make every effort to accommodate the needs of this handicapped employee." Id. at 12. The Arbitrator noted that the Agency had offered the employee a voice-activated computer and found that "[w]hether it was considered a transfer or not, the [organizational] change . . . made it possible for the Grievant to occupy a position utilizing his skills and abilities to the fullest without requiring computer keyboard speed skills." Id. The Arbitrator also noted that the area to which the grievant had requested a transfer "was also becoming computer-oriented" and would not be a satisfactory environment for the grievant. Id. The Arbitrator concluded that the grievant's "needs were seriously considered and accommodations made where feasible and possible, and that the Agency did not violate the negotiated agreement, or any law, rule or regulation in it's efforts to appease." Id. at 12-13.
III. Union's Exceptions
The Union claims that the Arbitrator was not "impartial." Exceptions at 3. The Union asserts that, at the outset of the hearing, the Arbitrator stated that during "his last visit to Pensacola" he "had ruled against" the Union representative who had handled a previous case. Id. The Union states that the grievant "was evidently not given proper consideration." Id.
The Union also maintains that the award should be overturned because the Arbitrator "was misled and lied to" by management witnesses who, according to the Union, "gave false and misleading testimony." Id. at 3-4. Specifically, the Union claims that management officials gave false testimony concerning work requirements in the organizational division to which the grievant requested a transfer.
IV. Analysis and Conclusions
We construe the Union's argument that the Arbitrator was not impartial as a claim that the award is deficient because the Arbitrator was biased. To demonstrate that an award is deficient on this basis, it must be shown that: (1) the award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator was guilty of misconduct by which the rights of a party were prejudiced. For example, National Labor Relations Board and National Labor Relations Board Union, 35 FLRA 421, 427 (1990). A mere allegation that an arbitrator is biased is not sufficient to establish that an award is deficient.
The Union has not demonstrated that the award was procured by improper means, that there was partiality or corruption on the Arbitrator's part, or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced. In particular, the fact that the Arbitrator stated that he had ruled against the Union's representative in a prior case does not, standing alone, establish proof of bias in this case. Accordingly, the Union's allegation that the Arbitrator was not impartial provides no basis for finding the award deficient. See, for example, id.
We construe the Union's argument that the Arbitrator was given false and misleading testimony as a claim that the award is based on nonfact. For an award to be deficient on this ground, it must be demonstrated that a central fact underlying the award is clearly erroneous, and constitutes a gross mistake of fact but for which a different result would have been reached by the Arbitrator. For example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Counci