46:0609(59)AR - - Army, III Corps and Fort Hood, Fort Hood, TX and AFGE Local 1920 - - 1992 FLRAdec AR - - v46 p609

[ v46 p609 ]
The decision of the Authority follows:

46 FLRA No. 59









LOCAL 1920




November 20, 1992

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 Elvis C. Stephens 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 filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance which concerned the counseling of the grievant regarding her attire. For the following reasons we conclude that there is no basis on which to find the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On October 29, 1991, the grievant wore a sweater and a miniskirt to work. Several employees complained about her attire, stating that it disrupted the workplace. On November 13, 1991, the grievant's supervisor counseled her concerning her attire and placed a notation on her "7B card," which apparently is part of the grievant's personnel file, indicating that the complaint had been discussed. Award at 2. The Union filed a grievance claiming that the counseling was given without just cause. The Union requested that any reference to a dress code be removed from the grievant's 7B card.

The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issue as follows:

Was the counseling of the Grievant concerning her attire on 29 October, 1991 for just cause? If not, what is the proper remedy?

Id. at 1.

The Arbitrator found that at the time of the incident the Agency did not have a dress code and, therefore, that it could not rely on such a code to justify its action. However, the Arbitrator stated that the Agency could take appropriate action to correct a disruptive situation in the workplace. The Arbitrator found that the deciding officials at steps 2 and 3 of the grievance procedure had independently investigated the case before rendering their decisions. Based on the evidence, the Arbitrator concluded that the grievant's attire did, in fact, disrupt the workplace and that management previously had spoken to the grievant regarding her attire. The Arbitrator also found that the grievant had not suffered any loss of work time or monetary benefits as a result of the counseling. With respect to the requested remedy, the Arbitrator stated that the entry on the 7B form most likely would be deleted in one year and that, in any event, the entry referred only to counseling and not to the reason for the counseling. Accordingly, the Arbitrator concluded that the counseling session, and subsequent entry on the grievant's 7B form, was for just cause and he denied the grievance.

III. Union's Exceptions

In its first exception, the Union alleges that the Arbitrator ignored its complaints that the Agency failed to furnish the Union with a list of management's potential witnesses, as provided by the parties' collective bargaining agreement, and failed to make all potential witnesses available to the Union for questioning prior to the arbitration hearing. In its second exception, the Union contends that the grievant was denied due process because she was never allowed to face her accusers. Third, the Union contends that the award was not based on evidence. More particularly as to this exception, the Union states that there was no specific evidence presented concerning the grievant's attire or how the grievant had disrupted the workplace.

In its fourth exception, the Union contests the Arbitrator's finding that an independent investigation was conducted by management officials at steps 2 and 3 of the grievance procedure. Fifth, the Union argues that the Arbitrator's statement that the grievant did not suffer a loss of work time or monetary benefits "is false and completely distorts the testimony of the grievant." Exceptions at 2. The Union claims that the grievant had to buy clothing to replace the items that she was not permitted to wear. The Union also states that the grievant incurred medical costs resulting from "anxiety attacks caused by [m]anagement . . . ." Id. In its last exception, the Union asserts that the Arbitrator failed to consider the "Douglas Factors[,]" which, according to the Union, are used to ensure that disciplinary actions taken against employees are procedurally correct. Id.

In addition, the Union claims that Article 31 of the parties' agreement "was flagrantly violated by the counseling of [the grievant]." Id. at 3. Accordingly, the Union requests that the award be overturned.

IV. Agency's Opposition

The Agency contends that the Union is merely disagreeing with the Arbitrator's factual findings and is attempting to relitigate the merits of the case before the Authority. The Agency asserts, for a variety of reasons, that the Union's exceptions provide no basis for finding the award deficient.

V. Analysis and Conclusions

For the following reasons, we find that the exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

We construe the Union's first exception as a contention that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing. See U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103 (1991). An arbitrator has considerable latitude in the conduct of a hearing, and the fact that the 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. S