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The decision of the Authority follows:
46 FLRA No. 59
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
III CORPS AND FORT HOOD
FORT HOOD, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
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. See, for example, American Federation of Government Employees, Local 2109 and U.S. Department of Veterans Affairs, Temple, Texas, 46 FLRA 446 (1992). Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator and that parties to arbitration do not have an absolute right to cross-examination but must be given an adequate opportunity to present evidence and arguments. See U.S. Department of Defense Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 869 (1990). In this case, the Union has presented no basis on which to conclude that the failure to provide a witness list or to make witnesses available prior to the hearing prevented the Union from presenting its case in full and, in any manner, denied the grievant a fair hearing.
In its second exception, the Union contends that the grievant was denied due process in not being able to face the employees who had complained about her attire. The Union has not set forth any basis on which due process was allegedly owed the grievant and we know of no such basis. If the thrust of the Union's exception is that the Arbitrator failed to allow it to question or cross-examine the employees, such an argument relates to the conduct of the hearing. As we stated above, there is no evidence that the grievant was denied a fair hearing. Consequently, this exception provides no basis for finding the award deficient.
In its third and fourth exceptions, the Union argues that the award was not based on certain evidence or was based on false and misleading evidence. In our view, these contentions constitute mere disagreement with the Arbitrator's evaluation of the evidence. They do not provide a basis for finding the award deficient. See, for example, U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 45 FLRA 797, 800 (1992). In addition, to the extent the Union's arguments pertain to reliance on false or misleading factual findings, we construe the Union's exception as a claim that the award is based on nonfacts. In order for an award to be deficient because it is based on a nonfact, a party 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. See for example U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 539 (1991). The Union has not established that the Arbitrator's factual findings were central to the award and erroneous, but for which a different result would have been reached by the Arbitrator.
In its fifth exception, the Union claims that the Arbitrator incorrectly found that the grievant did not suffer a loss of work time or monetary benefits. We also construe this assertion as a contention that the award is based on a nonfact. In our view, the Union has not established that the Arbitrator's findings regarding the loss of time and benefits were central facts underlying the award. Moreover, even if the statements were clearly erroneous, the Union has not established that the Arbitrator would have reached a different result. Rather, the Union's exception is an attempt to relitigate the case before the Authority and does not establish that the award is deficient. Id. at 539-40.
In its sixth exception, the Union claims that the Arbitrator erred in failing to apply the Douglas factors in assessing whether the disciplinary action taken against the grievant was procedurally correct. Contrary to the Union's assertion, the Arbitrator was not required to consider those factors in deciding the matter before him. The so-called Douglas factors were enunciated by the Merit Systems Protection Board (MSPB) in Douglas v. Veterans Administration, 5 MSPR 280 (1981). The factors essentially constitute guidelines governing the appropriateness of penalties. We have repeatedly stated that arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over actions not covered by 5 U.S.C. 4303 and 7512. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 45 FLRA 822, 829 (1992). The counseling session involved in this case does not concern a matter covered by 5 U.S.C. 4303 or 7512 and, therefore, the Arbitrator did not err in failing to apply the factors.
Finally, we note the Union's contention that the Agency violated Article 31 of the parties' agreement by counseling the grievant. There is no evidence in the record before the Authority that this claim was presented to the Arbitrator. Under section 2429.5 of the Authority's Rules and Regulations, arbitration awards are not subject to review on the basis of an issue that could have been, but was not, presented to the arbitrator. See U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1169 (1992). Consequently, the claim is not properly before us.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)