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59 FLRA No. 73
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R3-32
(Union)
and
UNITED STATES
DEPARTMENT OF THE AIR FORCE
WILLOW GROVE AIR RESERVE STATION
WILLOW GROVE, PENNSYLVANIA
(Agency)
0-AR-3673
_____
DECISION
November 28, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator William A. Babiskin filed by the Union under § 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 there was just cause for the Agency to suspend the grievant and denied the grievance. For the following reasons, we dismiss the Union's exception alleging that the award is contrary to § 7102 of the Statute, and we deny the remaining exceptions.
II. Background and Arbitrator's Award
The grievant, a local Union president, engaged in a heated dispute with her supervisor concerning a one-day suspension previously imposed on her. As a result, the grievant was given a seven-day suspension for insubordination. The grievant filed a grievance over the seven-day suspension, and the matter proceeded to arbitration on the following stipulated issue: "Was the seven day suspension of the grievant for just and sufficient cause? If not, what shall be the remedy?" Award at 1.
The Arbitrator stated that employees can be disciplined for making obscene, threatening, and abusive remarks to supervisors because such conduct is viewed as insubordination. The Arbitrator also stated that arbitrators "must be sensitive" as to whether the grievant is acting in a personal or official union capacity because a union official is not ordinarily subject to discipline when acting in an official capacity. Id. at 8. According to the Arbitrator, an employee's status as a union official is not an "impenetrable shield" against discipline and a union official, as an employee, is subject to the same rules as any other employee. Id.
Upon review of the facts and testimony, the Arbitrator found that the Agency had just cause to suspend the grievant. In making this finding, the Arbitrator credited the testimony of the supervisor, which established that the grievant became agitated, threatened "to get" the supervisor, and made intimidating, physical gestures. Award at 9. In addition, the Arbitrator found that the grievant was asked to leave several times before doing so and that she "plainly intended to sully and demean" her supervisor. Id. The Arbitrator determined that the grievant was "grossly insubordinate" and "way out of line[,]" and that this conduct was "flagrant misconduct" that was "totally unacceptable" in the work place. Id. Regarding the appropriateness of the penalty, the Arbitrator stated that there was no indication from the grievant that she assumed responsibility for her actions. As a result, the Arbitrator concluded that the seven-day suspension was not "excessive, arbitrary, capricious, or unreasonable." Id. at 10. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the award is contrary to § 7102 of the Statute because the Arbitrator failed to apply the correct legal standard. [n2] In this regard, the Union claims that the Arbitrator's conclusion that the grievant was engaged in "flagrant misconduct" is inconsistent with the standard employed by the Authority in assessing whether a union representative's conduct is protected under § 7102 of the Statute. Exceptions at 3. According to the Union, the Arbitrator never determined whether the grievant was engaged in protected activity, and did not apply the factors that the Authority considers [ v59 p459 ] in determining whether certain activity constitutes flagrant misconduct. See id. at 5 (citing Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7, 11 (1995)). The Union contends that the grievant was engaged in protected activity and that she did not engage in flagrant misconduct under the Authority's standard because "there was nothing insolent, much less threatening about the [g]rievant's conduct." Id. at 5.
The Union further claims that the Arbitrator failed to conduct a fair hearing by permitting the Agency to introduce evidence of a one-day suspension imposed on the grievant prior to the one-day suspension that led to this grievance. According to the Union, the admission of this evidence was unrelated to the seven-day suspension and was introduced only to convince the Arbitrator to discredit the grievant's testimony. The Union asserts that the evidence prejudiced the grievant in a manner that affected the fairness of the proceeding.
In addition, the Union contends that the Arbitrator exhibited a clear bias against the grievant by failing to credit any of the grievant's testimony and "all but call[ing] her a liar." Id. at 9. The Union also claims that the Arbitrator's findings and description of the grievant's conduct demonstrate bias because they are "sharply critical" of the grievant. Id. at 10.
B. Agency's Opposition
The Agency contends that the Arbitrator properly found that the grievant was not engaged in protected activity during the dispute and that even if she was, the grievant engaged in flagrant misconduct. The Agency also asserts that even if the grievant did not engage in flagrant misconduct, the suspension was for just cause because the conduct "nonetheless goes beyond the bounds of protected activity[.]" Opposition at 6. The Agency further contends that the Union has failed to establish that the Arbitrator did not conduct a fair hearing or was biased against the grievant.
IV. Preliminary Matter
Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not, presented to the Arbitrator. [n3] See AFGE, 57 FLRA 769 (2002). The Union asserts in its exceptions that the Agency interfered with the grievant's rights under § 7102(a) of the Statute and that, in addressing whether the discipline of the grievant should be upheld, the Arbitrator did not apply the appropriate test for whether the grievant had engaged in flagrant misconduct. There is no indication that the Union raised to the Arbitrator, or that the Arbitrator resolved, a claim that the Agency violated § 7102(a) of the Statute. Rather, the parties stipulated that the issue in the case was whether "the seven day suspension of the grievant [was] for just and sufficient cause[,]" and thus a violation of Article 23.1 of the parties' negotiated agreement. Award at 1; Union's Post-Hearing Brief at 4 (citing agreement). The Union's argument regarding § 7102 could have, and should have, been presented to the Arbitrator. See AFGE, Local 2145, 55 FLRA 366, 368 (1999). Accordingly, the Union is precluded from raising that issue for the first time here, and we dismiss the Union's exception regarding § 7102.
V. Analysis and Conclusions
A. The Arbitrator did not fail to conduct a fair hearing.
The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995).
According to the Union, the Arbitrator improperly permitted the Agency to introduce evidence of a one-day suspension imposed on the grievant prior to the seven-day suspension that led to this grievance. However, the Authority has held that "[t]he liberal admission by arbitrators of . . . evidence is a permissible practice." See United States Dep't of Defense, Def. Mapping Agency, Hydrographic/Topographic Ctr., 44 FLRA 103, 109 (1992) (citing Veterans Admin. and VA Med. Ctr. Register Office, 34 FLRA 734, 738 (1990)). The Union has failed to show that the Arbitrator's admission of the disputed evidence prevented the Union from presenting its case in full to the Arbitrator or otherwise affected the fairness of the proceeding. See United States Dep't of Housing and Urban Dev., Denver, Colo., 53 FLRA 1301, 1318 n.8 (1998). As such, the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing, and we deny the exception.
B. The Arbitrator was not biased.
To establish that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the [ v59 p460 ] party. See United States Dep't of Veterans Affairs, Med. Ctr., North Chicago, Ill., 52 FLRA 387, 398 (1996). The Authority has held that the fact that an arbitrator makes statements critical of a party does not establish bias. See United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 851 (2000) (Dep't of the Navy) (citing United States Dep't of Defense, Def. Mapping Agency, Hydrographic/Topographic Ctr., Wash., D.C., 47 FLRA 1187, 1203-05 (1993)). Moreover, the Authority has denied exceptions based on an arbitrator's remarks indicating concern with a party's conduct. See id. (citing Dep't of Health & Human Serv., Soc. Sec. Admin., 26 FLRA 6, 7-8 (1987)).
Here, the Union alleges that the Arbitrator was biased against the grievant because he failed to credit any of the grievant's testimony and his findings and description of the grievant's conduct were "sharply critical." Exceptions at 10. However, the fact that the Arbitrator credited only the supervisor's testimony does not demonstrate that the Arbitrator was biased. See United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Ctr., Charleston, S.C., 56 FLRA 381, 385 (2000). Furthermore, the Union has not demonstrated that the weight given to the testimony of the witnesses prejudiced the rights of the grievant. See DHHS, SSA, Office of Hearings and Appeals, 39 FLRA 407, 415 (1991).
In addition, although the Union asserts that the Arbitrator was "sharply critical" of the grievant, the Union has not specified the arbitral statements to which it refers. This assertion, without more, does not show that the award was procured by improper means, that the Arbitrator was partial or corrupt, or that the Arbitrator engaged in misconduct that prejudiced the grievant's rights. Further, even assuming that the Union's assertion is accurate, as stated previously, the Authority has held that an arbitrator's critical statements of a party do not establish that the arbitrator was biased. See Dep't of the Navy, 56 FLRA at 851. Accordingly, the Union has not demonstrated that the Arbitrator was biased against the grievant, and we deny the exception.
VI. Decision
The Union's exception regarding § 7102 is dismissed, and its remaining exceptions are denied.
Concurring Opinion of Chairman Cabaniss:
I write separately to discuss a recurring issue in the analysis of arbitration exceptions. Consistent with my views expressed in other cases, I am concerned that parties, and the arbitrators before whom they appear, all too often interpret contract clauses and other matters in Federal sector labor relations in a manner that fails to acknowledge the statutory interests inherent in those "terms of art," even where there is no indication or evidence that the parties intended those terms to be interpreted in a manner other than the accepted meaning ascribed to that term of art.
In the present case, there is little in the record to inform the Authority (or even the Arbitrator) as to what is meant by the "flagrant misconduct" discussion in the award. I would find such a term of art to carry its usual statutorily based meaning, especially in the absence of some express determination by parties to ascribe a different meaning to the phrase or term. However, given the state of arbitral precedent, a party seeking to rely on the statutorily based meaning of one of these phrases or terms would be well advised to create a better record in order to better prove its case.
Footnote # 1 for 59 FLRA No. 73 - Authority's Decision
Chairman Cabaniss' concurring opinion is set forth at the end of this decision.
Footnote # 2 for 59 FLRA No. 73 - Authority's Decision
5 U.S.C. § 7102 provides, in pertinent part, that
"[e]ach employee shall have the right to form, join, or assist any labor organization[] . . . freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. . . ."
Footnote # 3 for 59 FLRA No. 73 - Authority's Decision
Section 2429.5 provides, in pertinent part, that "[t]he Authority will not consider . . . any issue, which was not presented in the proceedings before the . . . arbitrator."