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54:0070(10)AR - - NAGE Local R12-44 & Defense Logistics Agency, Long Beach CA - - 1998 FLRAdec AR - - v54 p70

[ v54 p70 ]
The decision of the Authority follows:

54 FLRA No. 10





LOCAL R12-44










April 29, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Donald A. Anderson 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator found that the Agency's 3-day suspension of the grievant did not violate the parties' collective bargaining agreement and denied the grievance.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is an employee of the Agency and is the Union President. He was scheduled to attend a training workshop on June 1, 1995, but arrived late, attending the workshop for approximately 15 minutes. The grievant made arrangements with the instructor to attend the same workshop again on June 2 in a different location. On June 2, the grievant informed his acting supervisor that after attending to certain Union business at the district office, he would then attend a second day of the training workshop.

The Agency charged the grievant as being absent without leave (AWOL) on June 2 and displaying a pattern of misrepresentation and deceit by falsifying his time sheet related thereto. The Agency initially proposed suspending the grievant for 5 days on the basis that the grievant was not authorized to attend a make-up session and that there were no training workshops offered on June 2. Thereafter, the Agency acknowledged that the same workshop was offered on June 2 in a different location, and the Agency modified the suspension to 3 days.

The Union filed a grievance, which was not resolved and was submitted to arbitration. In the absence of the parties' agreement as to the issue, the Arbitrator framed the issue as follows:

1. Did the Agency violate the parties['] collective bargaining agreement when it decided for a three (3) day suspension for the [grievant's] alleged AWOL relative to his actions on June 1, 1995, and/or June 2, 1995, involving his attendance at a . . . workshop training program.

2. If not, what is the appropriate remedy?

Award at 2.

The Arbitrator stated that "in cases such [as this one], the bottom line is [the] credibility of witnesses." Id. at 7. While the grievant testified that he was late to the training workshop because he was not aware of the date of the training workshop until the day of the workshop, the Arbitrator credited the testimony of the Agency's training administrator, finding that the grievant had notice of the date of the original workshop. The Arbitrator was also persuaded by the testimony of other Agency witnesses, concluding that "the evidence showed that [the grievant] did not obtain valid management approval to attend the June 2, 1995, training session." Id. at 6. The Arbitrator did not credit the grievant's testimony, finding that "[g]rievant's explanation of his actions surrounding his attendance at the training sessions was not particularly impressive." Id. at 7.

Additionally, at the hearing, the Union argued that the testimony of the grievant's team leader was irrelevant. However, the Arbitrator found that although the grievant's team leader was not in the office on the dates in question, his testimony was relevant because of the team leader's characterization of the grievant's overall attendance record as not "particularly impressive." Id. at 6.

Finally, there was testimony that the Agency's delay and modification of the discipline prejudiced the grievant's case. The Arbitrator found that the Agency's modification of the discipline "was not shown to have prejudiced [the] [g]rievant's case . . . ." Id. at 7. In fact, the Arbitrator found that although the Agency was "initially unaware of [the] [g]rievant's attendance at the June 2, 1995, training program[,] . . . it decided to acknowledge this failure by adjusting the discipline[.]" Id. The Arbitrator also found that although the Agency's "protracted attention to the incident giving rise to this case was not impressive[,]"(*) the Agency's action did not impede the grievant's ability to defend himself. Id.

The Arbitrator found that: (1) the grievant should have been aware of the June 1 training session; (2) the grievant did not receive authorization to attend the June 2 training session; (3) the grievant's explanations regarding his conduct during the time in question was not persuasive; and (4) the Agency's delay in disciplining the grievant did not hinder the grievant's defense. Thus, the Arbitrator concluded that the Agency did not violate the parties' agreement by suspending the grievant for 3 days based on his conduct relative to the "June 1, 1995 and/or June 2, 1995" workshops.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator's award should be set aside. The Union asserts that the Arbitrator "incorrectly stated as one of the basic issues" that the grievant's tardiness on June 1, was at issue, when the Agency's discipline was the result of grievant's activities on June 2. Exceptions at 2.

According to the Union, the Arbitrator did not consider the Agency's "unconscionable delay" between the occurrence of the conduct and the Agency's discipline of the grievant and that such delay prejudiced the grievant. Id. at 3. The Union also claims that the Arbitrator gave "undue weight" to the testimony of the grievant's team leader regarding the incidents on the dates in question. The Union maintains that the team leader was not at work on the dates in question and therefore, had no direct knowledge of incidents.

The Union further argues that the Arbitrator should have dismissed the discipline of the grievant because the Agency changed the charges against the grievant and such changes prejudiced the grievant. According to the Union, "[r]ather than (as required by law, rule, and regulation), withdrawing the charge and penalty and then substituting a new charge, the Agency modified the charge . . . ." Id. at 3.

B. Agency's Opposition

The Agency contends that the Union has not established that the award is deficient. According to the Agency, the Arbitrator properly considered the grievant's activities on June 1, because they were related to his misconduct on June 2. The Agency maintains that the Union is simply disagreeing with the Arbitrator's evaluation of the evidence and findings of fact. The Agency contends that the Arbitrator rejected the Union's claims that the grievant's case was harmed by the Agency's delay in processing the case or by the modifications thereto. The Agency also contends that Union has not shown that the Arbitrator's decision violated any law, rule, or regulation.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority.

We construe the Union's claim that the award is deficient because the Arbitrator considered the grievant's actions on June 1 as a contention that the Arbitrator exceeded his authority. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, disregard specific limitations on their authority, or award relief to parties not included within the grievance. See U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995). It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington and American Federation of Government Employees, Local 48, Bremerton Metal Trades Council, 53 FLRA 1445, 1449 n.3 (1998) (Member Wasserman dissenting); see also, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996) (Defense Contract Audit Agency).

In the instant case, the record shows that the parties did not stipulate to the issues to be resolved and submitted competing versions of the issue to the Arbitrator for determination. As framed by the Arbitrator, the issue concerned the grievant's conduct on June 1 "and/or" June 2. Award at 2. The Arbitrator found that the grievant's absence from work on June 2 was not authorized. Therefore, the Arbitrator's findings and conclusions are within the scope of the issue as he framed it.

Because the award is responsive to the issue as the Arbitrator framed it, there is no basis for finding that the award is deficient on the ground that the Arbitrator exceeded his authority. See Sport Air Traffic Controllers Organization and U.S. Department of the Air Force, Headquarters, Air Force Flight Test Center, Edwards Air Force Base, California, 51 FLRA 1634, 1638 (1996); Defense Contract Audit Agency, 51 FLRA at 1165.

B. The Arbitrator Did Not Fail To Conduct A Fair Hearing.

We construe the Union's arguments that the Arbitrator did not consider the Agency's delay in charging the grievant after the conduct occurred, and gave undue weight to specific testimony, as claims that the Arbitrator failed to conduct a fair hearing.

The Authority will find an award deficient on this ground when it determines that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party and affected the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). It is well established that an arbitrator has considerable latitude in conducting the hearing. U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA 390, 396 (1997).

As to the Union's contention that the Agency failed to charge the grievant in a timely manner and, as such, prejudiced the grievant's ability to present a case, the Arbitrator specifically found that, although the Agency was slow in imposing the discipline for the conduct, this action did not hinder the grievant in defending his case.

The Union has not argued that the Arbitrator refused to hear pertinent or material evidence or demonstrated that the Arbitrator's evidentiary rulings prejudiced the grievant. Rather, the Union disagrees with the weight the Arbitrator gave to the testimony of the grievant's team leader. The Union claims that the team leader's testimony was not relevant because he was not in the office on the days in question. However, the Arbitrator relied on the team leader's testimony only as it pertained to the grievant's attendance record in general, not as it pertained to the grievant's actions on June 1 and June 2. Consequently, the Union has not shown that the Arbitrator failed to conduct a fair hearing, and we deny this exception.

C. The Award Is Not Contrary to Law, Rule, Or Regulation.

The Union excepts to the award on the basis that it is inconsistent with law, rule, or regulation. However, the Union has not cited any law, rule, or regulation with which the award allegedly conflicts. As such, the Union's exception provides no basis for finding the award deficient. See National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, North Central Region, Chicago, Illinois, 51 FLRA 594, 598 (1995). Accordingly, we deny this exception.

V. Decision

The Union's exceptions are denied.

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

* It appears that the Arbitrator was referring to the Agency's delay, as argued by the Union, in imposing discipline. The record indicates that while the incident occurred in June 1995, the grievant was not disciplined for several months.