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46 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

HOUSTON, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 215

(Union)

0-AR-2304

_____

DECISION

November 13, 1992

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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 Carol Kyler 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.⁽¹⁾

The Arbitrator denied a grievance filed over a 1-day suspension. 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 was suspended for 1 day for intentionally misrepresenting the time she reported for work on one occasion. A grievance was filed over the suspension and, when it was not resolved, it was submitted to arbitration on the following issue, as stipulated by the parties:

Did the . . . suspension of the Grievant . . . violate any law, rule, regulations or the National Agreement? If so, what is the appropriate remedy?

Award at 2.

Before the Arbitrator, the Union contended that the grievant did not intentionally falsify time records. However, the Arbitrator rejected the contention. Based on testimony of witnesses at the arbitration hearing, the Arbitrator concluded that "the Grievant, for whatever reason, was late for [work] and in order to cover-up this fact, willfully and intentionally falsified the Time and Attendance Report . . . as charged in the Notice of Proposed Suspension." Id. at 5-6.

The Arbitrator also rejected other Union arguments regarding the propriety of the suspension. As relevant here, the Arbitrator concluded that the Agency did not violate applicable regulations⁽²⁾ or the parties' collective bargaining agreement⁽³⁾ by relying on information that either was developed after the issuance of the notice of proposed suspension or was not properly disclosed to the grievant and/or her Union representative. In this connection, the Arbitrator found that the Agency did not act improperly when the official responsible for deciding whether to suspend the grievant interviewed another official in connection with an ambiguity in a pertinent document. According to the Arbitrator, "[t]here is nothing to indicate[] that, as alleged by the Union, the Agency was engaged in an effort to gather 'new evidence,' after the fact . . . to support its proposal." Id. at 7. The Arbitrator also found that the Agency's use of certain memoranda, developed by Agency officials as part of the Agency's investigation into the grievant's alleged misconduct, was not improper because "[t]hey were not documents involving a prior action which had been included in the Grievant's SF-7B file without her knowledge[.]" Id. at 8.

In addition, the Arbitrator rejected the Union's argument that "the Deciding Official's delay in issuing his decision" was unreasonable and violated Article 23, section 9 of the parties' agreement. Id. at 7.⁽⁴⁾ The Arbitrator found that neither this provision nor any other applicable law or regulation "specif[ied] any . . . time limits for the Deciding Official to render his decision." Id.

Finally, as relevant here, the Arbitrator refused to direct the Agency either to refund the grievant's travel expenses, as part of a grant of official time, in connection with the arbitration hearing or to provide the grievant a witness fee. The Arbitrator found the Union's claims "in conflict" and noted that the Union "on one hand, seem[ed] to imply the Grievant is a federal employee entitled to 'official time,' while on the other, the Grievant is no longer a federal employee and entitled to a witness fee." Id. at 9. The Arbitrator concluded that "[t]he evidence on the record is not sufficient upon which to make a finding as to the Grievant's employment status as of the time of the hearing." Id. at 9.

As his award, the Arbitrator stated that "the Agency did not violate any law, rule, regulations or the National Agreement when it suspended the Grievant[.]" Id. Accordingly, the Arbitrator denied the grievance.

III. Exceptions

The Union claims that the award is deficient because it is contrary to law, rule, and regulation, because it fails to draw its essence from the parties' agreement and is based on a nonfact, and because the Arbitrator exceeded her authority.

According to the Union, the Arbitrator improperly refused to "remove from consideration all documentation utilized by the Agency in its decision to issue the Notice of Proposed Suspension . . . ." Exceptions at 2. The Union argues that, by sustaining the Agency's use of the contested information, the award violates the Privacy Act of 1974, the FPM, and Article 3, section 5(E) of the parties' agreement.

In addition, the Union asserts that "[t]he central fact" underlying the award was a nonfact and that the award evidences "the arbitrator's total disregard of relevant evidence and testimony presented at the hearing." Id. at 4. The Union claims that the Arbitrator's conclusion that the grievant intentionally misrepresented her arrival time at work is "in direct conflict with all the evidence[.]" Id. at 5.

Next, the Union claims that the Arbitrator exceeded her authority "by defining the word 'timely'" in Article 23, section 9 so as to conclude that the Agency did not violate that provision. Id. at 6. According to the Union, "the Agency's five[-]month delay clearly could not have been considered timely and the Arbitrator was duty bound to find the decision not timely." Id.

Finally, the Union objects to the Arbitrator's failure to require the Agency to reimburse the grievant's travel expenses and provide the grievant a witness fee. The Union claims that the award "violates the law . . . ." Id.

IV. Analysis and Conclusions

A. Law and Regulation

The Union claims that, by sustaining the Agency's use of certain information and documents in connection with its decision to suspend the grievant, the award violates the Privacy Act and FPM chapters 293 and 297.⁽⁵⁾ However, the Union offers no support for its argument and, in connection with the FPM, does not specify a section with which the award allegedly conflicts. Accordingly, as no conflict between the award and law or regulation is apparent to us, we will deny this exception.

B. Essence of the Agreement

The Union's claim that the Arbitrator improperly interpreted Article 3, section 5(E) of the parties' agreement constitutes an assertion that the award fails to draw its essence from the agreement. In addition, although the Union argues that the Arbitrator exceeded her authority in connection with her interpretation of Article 23, section 9 of the agreement, it is clear that this argument also constitutes an assertion that the award fails to draw its essence from the agreement.

To demonstrate that an award is deficient as failing to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992).

The Union has not demonstrated that the Arbitrator's interpretations of the agreement are irrational, implausible, or in manifest disregard of the agreement either in connection with the Arbitrator's conclusion that the Agency did not violate Article 3, section 5(E) by using information that had not been placed in a relevant employee file or in connection with her conclusion that Article 23, section 9 did not establish a time limit applicable to the issuance of a final decision regarding a proposed suspension. We conclude that this exception constitute mere disagreement with the Arbitrator's interpretation and application of the parties' agreement and, as such, provides no basis for finding the award deficient. See, for example, id.

C. Nonfact

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the Arbitrator. For example, U.S. Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 44 FLRA 1080, 1083 (1992) (Fort Bragg).

The Union has not demonstrated that the Arbitrator's finding that the grievant intentionally misrepresented her arrival time at work on one occasion is clearly erroneous. In this regard, the Arbitrator reviewed the testimony of witnesses at the arbitration hearing and found that the "only conclusion" that could be drawn from that testimony was that the grievant "willfully and intentionally falsified" the relevant time and attendance document. Award at 5-6. The Union's claim to the contrary constitutes mere disagreement with the Arbitrator's evaluation of the evidence and her findings and conclusions based thereon. Accordingly, this exception provides no basis for finding the award deficient. See id.

D. Travel Expenses and Witness Fees

The Union offers no support for its argument, and we are aware of no basis on which to conclude, that the Arbitrator's refusal to award the grievant travel expenses and witness fees violates law. Moreover, as discussed previously, the Arbitrator's refusal was based on, among other things, his findings that the Union's requests were inconsistent and that the "evidence on the record is not sufficient upon which to make a finding as to the Grievant's employment status as of the time of the hearing." Award at 9. Accordingly, although the Union asserts that the failure to award expenses and fees violates law, it is clear that this exception actually constitutes disagreement with the Arbitrator's assessment and evaluation of the evidence before her. As such, this assertion does not provide a basis on which to find the award deficient. For example, Fort Bragg, 44 FLRA at 1083.

V. Decision

The Union's exceptions are denied.

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

1. The Agency filed an opposition to the exceptions. However, as the opposition appeared to be untimely filed, the Authority ordered the Agency to show cause why it should be considered. The Agency failed to respond to the Authority's order. Accordingly, the opposition has not been considered.

2. The Union relied on Federal Personnel Manual (FPM) chapter 752, 2-3(e)(2), which provides, in relevant part, that:

"Any supporting material" is that on which the agency based its notice of proposed action and relied on to support the reasons in the notice."

3. The Union relied on Article 3, section 5(E) of the parties' agreement, which provides:

Other than records that are exempt, any record that has not been disclosed to an employee on a timely basis and placed in his/her SF-7B Extension File cannot be used in a disciplinary or adverse action.

Award at 2-3.

4. Article 23, section 9 provides:

IF the [Agency] feels that disciplinary or adverse action is necessary, such action will be initiated timely after the offense was committed or made known to the [Agency].

Award at 3.

5. FPM chapter 293 is entitled "Personnel Records" and chapter 297 is entitled "Privacy Procedures for Personnel Records."

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