[ v61 p810 ]
61 FLRA No. 163
OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISONS LOCALS
DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
September 26, 2006
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Richard W. Croll 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 denied the grievance, finding that the Agency had cause to discipline the grievant and that the Union failed to establish that the discipline was motivated by anti-Union animus. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The case concerns the suspension of the grievant, a psychologist at the Sheridan Federal Correctional Institution (the prison). Two regional prison officials conducted a preliminary evaluation at the prison in advance of a Program Review and discovered that one staff psychologist (the grievant) was making significantly fewer entries into a computerized Psychological Data System (PDS). The officials determined that this was a problem because it affected inmate suicide risk assessment. [ v61 p811 ]
Prison officials investigated the grievant for misconduct regarding the missing entries in the PDS. The grievant's supervisor proposed that he be charged with failing to make 21 entries in the PDS and recommended a five day suspension. [n1] The warden reviewed the proposed discipline but changed the suspension to three days, based on the grievant's long-standing service to the prison. The grievant filed a grievance, alleging no just cause for the discipline and reprisal for the grievant's protected activity as a Union representative. The grievance proceeded to arbitration.
B. Arbitrator's Award
As relevant here, the parties stipulated the following issues for arbitration:
Did the Agency violate the Master Agreement, Articles 6, 7, 30, and 31, Local Supplement [and] 5 U.S.C., Chapter 77, and Title 7 of the Civil Rights Act of 1964 as amended, when the Agency suspended the [g]rievant for three calendar days for failure to follow policy? If not, the grievance must fail, if so, what shall be the remedy?
Award at 3. [n2]
The Arbitrator's award consists of two parts-- an examination of the discipline charge and a discussion of the anti-Union animus contention. The Arbitrator concluded, based on the record before him, that the Agency's discipline of the grievant was warranted. As to the contention of whether the penalty against the grievant should have been based on performance rather than on discipline, the Arbitrator noted that the Union stipulated that the decision of whether to assess performance or discipline regarding the grievant's actions is totally in the purview of the Agency. See Award at 8 n.4.
The Arbitrator next discussed the issue of anti-Union animus and noted that if such animus were established then he would modify the discipline imposed. The Arbitrator set forth a brief summary of the facts which preceded this grievance: (1) the grievant was terminated and reinstated by an outside authority in 1995; (2) an arbitrator sustained the Union's charge against the Agency of anti-Union conduct that violated the Statute in 1998; and (3) the Union filed a ULP against the Agency that was sustained in July 2003. The Arbitrator also found that other charges had been levied against the grievant that were dismissed. The Arbitrator noted, however, that the incidents leading to all of the previous charges had occurred under previous wardens and that even though the present warden had signed one ULP posting, any anti-Union animus had occurred under the previous wardens. Accordingly, the Arbitrator found that no proof of current anti-Union animus existed. Consequently, as the Arbitrator found that the charges against the grievant were sustained, and were not based on any anti-Union animus, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union makes several assertions of alleged bias in its exceptions. In particular, the Union objects to the Arbitrator's admission of Agency document 21, which the Union claims it did not know about or possess. See Exceptions at 6. The Union also excepts to the Arbitrator's admission of many exhibits, and much testimony, and to his evaluation of the record evidence. See Exceptions at 6, Ref. page 247-50, lines 22-23; Exceptions at 7, Ref. page 489, lines 10-19; Ref. page 508-12, lines 11-13.
The Union also claims that the Arbitrator based the award on his desire to keep the record of arbitration decisions for the parties in a "fifty-fifty split," that is, half of his arbitration awards in favor of the Agency and the other half in favor of the Union, to guarantee future employment by the parties. Exceptions at 9.
2. Fair Hearing
Several of the Union's exceptions regarding the hearing constitute contentions that the Arbitrator failed to conduct a fair hearing. In particular, the Union asserts that the Arbitrator improperly asked a witness questions, rather than remaining a "neutral listening to the various testimony as brought forward through the advocates and their questioning." Exceptions at 6 (Ref. page 265, lines 21-25). The Union also contends that the Arbitrator acted inappropriately when he urged the Union to move on with its presentation (see Exceptions at 6 (Ref. page 481, line 18)), and when the Arbitrator suggested that the Union could cover a matter in more detail in its brief if it so wished (see Exceptions at 5 (Ref. pages 117-118, lines 11-5)). In addition, the Union asserts that the Arbitrator interfered with its witness by asking, "`Haven't we covered this before'" [ v61 p812 ] while the Union claimed that was not the case (See Exceptions at 5 (Ref. page 139, lines 5-6)).
3. Contrary to Law, Rule and Regulation
The Union references several laws and legal concepts, alleging that the award violates them. For example, the Union asserts a violation of "5 U.S.C. Chapter 77[.]" Exceptions at 7. The Union claims that the disciplinary action was not taken for just and sufficient cause to promote the efficiency of the service and thus the Arbitrator's award is contrary to law, rule and regulation. See Exceptions at 5.
The Union also argues that the Arbitrator failed to apply the Douglas factors in his analysis of the issues before him. [n3] Specifically, the Union contends that the Arbitrator exhibited bias when the Union attempted to raise the issue of anti-Union animus, and the Arbitrator did not apply this factor as part of the Douglas factors, which the Union asserts the Agency and the Arbitrator should have applied in mitigation of at least the penalty portion of the grievance. See id. at 6.
Finally, the Union sets forth a list of cases "referenced by the Exception[s]" that it asserts supports its contrary to law exception. See id. at 9.
The Union claims that the award fails to draw its essence from the parties' agreement under Article 30, Section a. as disciplinary action was not taken for just and sufficient cause to promote the efficiency of the service. [n4] See Exceptions at 5. The Union disputes the Arbitrator's evaluation of the record evidence that there was sufficient cause for disciplinary action. The Union also contends that the Agency failed to follow the agreement's provision requiring the Agency to use a system of progressive discipline. See id. at 2.
Additionally, the Union asserts that the Arbitrator failed to follow Article 30, Section e of the parties' agreement. In this regard, the Union alleges the Arbitrator violated the agreement by finding that the grievant was not entitled to a notice of proposed disciplinary action and the right to receive material relied upon to support the reasons for the action. See id. at 5.
The Union contends that the award is based on various nonfacts. In particular, the Union claims that the award's reference to the grievant's right to information under the Freedom of Information Act (FOIA) was in error and a nonfact. See Exceptions at 5. Additionally, the Union asserts that the Arbitrator erred when he stated that the grievant was terminated and then reinstated in 1995. Finally, the Union argues that the Arbitrator incorrectly referenced an exhibit as Joint 11, and that the exhibit is actually Agency 21. See id. at 3.
6. Exceeded Authority
The Union claims that the Arbitrator admitted evidence into the record "`regarding failing to log suicide stuff'" that forms an additional charge that is not a part of the Agency's contention in its decision letter. See Exceptions at 6 (Ref. page 362, lines 18-22).
The Union also contends that the Arbitrator failed to rule on an unfair labor practice charge submitted to him. See Exceptions at 2. Specifically, the Union asserts that neither the grievant nor the Union were made aware of a purported change regarding the input of certain information in to the PDS system concerning medical judgment calls. According to the Union, this constituted an unfair labor practice, which was brought before the Arbitrator and on which the Arbitrator refused to rule. See Exceptions at 4-5.
B. Agency's Opposition
The Agency argues that the Union's contentions challenge the Arbitrator's rulings on admission of evidence and witness credibility issues without substantiation. The Agency further claims that the Union's arguments constitute bare assertions concerning the Arbitrator's evaluation of the record evidence. The Agency notes that merely showing that at the hearing the Arbitrator used sharp language or made statements [ v61 p813 ] that are critical of a party does not establish that the Arbitrator was biased.
The Agency claims that the Union's contrary to law exception does not in any way make a specific allegation that the award is contrary to law. As to the Union's Douglas factor argument, the Agency points out that arbitrators must follow MSPB precedent only in actions covered by 5 U.S.C. §§ 4303 or 7512 that are not applicable in this case. With respect to the list of cases set forth at the end of the Union's exceptions, the Agency asserts that the Union has not made any attempt to tie those cases to its argument or stated the purpose for which it was citing them.
The Agency argues that the Union fails to clearly identify how the award fails to draw its essence from the parties' agreement. The Agency states that the "sufficient cause" provision of the agreement is the only provision cited by the Union. The Agency also argues that the Union's contention constitutes a bare assertion.
The Agency does not specifically address the Union's arguments that the Arbitrator failed to conduct a fair hearing, that the award is based on nonfacts, and that the Arbitrator exceeded his authority.
IV. Analysis and Conclusions
A. The Union Has Not Demonstrated that the Arbitrator Was Biased
The Authority will find an arbitration award deficient when the appealing party establishes that there was bias, partiality, or corruption on the part of the arbitrator. To establish that an award is deficient on this ground, the appealing party must demonstrate one of the following: (1) the award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator engaged in misconduct that prejudiced the rights of the appealing party. See United States Dep't of Veterans Affairs, Med. Ctr., Ann Arbor, Mich., 56 FLRA 216, 220 (2000) (citing Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Ky., 7 FLRA 18, 19 (1981)).
When analyzing a bias allegation, the Authority has applied the approach of Federal courts in reviewing awards in the private sector. In National Gallery of Art, 39 FLRA 226, 233-234 (1991), the Authority noted that when a claim of partiality is made, Federal courts require the appealing party to prove specific facts establishing improper motives; the courts ascertain from such record as is available whether the arbitrator's conduct was so biased and prejudiced as to destroy fundamental fairness. Federal courts will find bias or evident partiality when: (1) a reasonable person would conclude that the arbitrator was partial; (2) the circumstances are powerfully suggestive of bias; or (3) the evidence of impropriety is direct, definite, and capable of demonstration. Id. at 233-34. When possible, claims of "personal bias" must be raised to the Arbitrator. See United States Envtl. Prot. Agency, Region 5, Chicago, Ill., 61 FLRA 247, 250 n.3 (2005); United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md. 57 FLRA 417, 422 (2001); United States Dep't of the Air Force, Air Force Logistics Command, Hill AFB, Utah, 34 FLRA 986, 990 (1990).
In applying the standard set forth above to the facts of this case, we conclude that the Union has not established that the Arbitrator was biased in the conduct of the hearing or in his award. We note, in this regard, that the Union asserts, and the Agency does not dispute, that the Union raised its bias concerns directly to the Arbitrator at the hearing. Nevertheless, the Union's bias exceptions are bare assertions that do not establish that the Arbitrator's conduct was biased or partial, and constitute an attempt to relitigate the matter before the Authority. Such an exception provides no basis for finding the award deficient. See, e.g., United States Dep't of Def., Def. Commissary Agency, Pearl Harbor, Haw., 48 FLRA 476, 479 (1993). Accordingly, we deny the exception.
B. The Union Has Not Demonstrated that the Arbitrator Failed to
Conducted 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 GSA, Region 9, Los Angeles, Cal., 56 FLRA 978, 979 (2000) (GSA) (citing AFGE, Local 1668, 50 FLRA 124, 126 (1995)). Further, it is well established that an arbitrator has considerable latitude in conducting a hearing, and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, by itself, provide a basis for finding an award deficient. See GSA, 56 FLRA at 979 (citing AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996)); United States Dep't of Defense, Defense Mapping Agency, Hydrographic/Topographic Ctr., 44 FLRA 103, 108-09 (1992). Finally, federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate [ v61 p814 ] notice, a hearing on the evidence, and an impartial decision by the arbitrator. Id. at 109.
The Union claims it was denied a fair hearing when the Arbitrator asked questions, urged the Union to proceed with its presentation, and asked whether certain testimony was already in the record. [n5] In conducting a hearing, nothing prevents an arbitrator from asking questions, avoiding repetitious testimony, or suggesting that the proceeding progress expeditiously. See, e.g., United States Dep't of Homeland Security, Customs & Border Prot. Agency, New York, N.Y., 60 FLRA 813, 817 (2005) (Authority found arbitrator did not fail to conduct fair hearing when a witness was not allowed to testify, but where another witness had testified on same matter). As arbitrators have considerable latitude in conducting arbitration hearings and there has been no showing that the Arbitrator's conduct of the hearing was improper or prejudiced the Union, we deny the exception. See, e.g., AFGE, Local 3495, 60 FLRA 509, 512 (2004).
Moreover, the Union's exception challenges the Arbitrator's determination regarding the relevance of the evidence. As a general matter, such arguments do not provide a basis for finding an award deficient. See AFGE, Local 1858, 59 FLRA 90, 92 (2003) (citing United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 489, 493 (2001)). Therefore, we deny the exception.
C. The Union Has Not Demonstrated that the Award Is Contrary to
Law, Rule or Regulation
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Union asserts that the award is contrary to law, references laws and other legal concepts, but does not explain how the award is contrary to any law, rule or regulation. In particular, the Union alleges that the award violates 5 U.S.C. Chapter 77, but fails to explain or substantiate its allegation. Consequently, the Union's bare assertions fail to establish that the award is contrary to law.
The Union also asserts that the Agency should have applied the Douglas factors in mitigating any penalty. As the Agency correctly asserts, arbitrators must follow MSPB precedent only in matters covered by 5 U.S.C. §§ 4303 or 7512. Since those statutory provisions are not applicable in this case, the Union's reliance on the Douglas factors is misplaced.
The Union's list of cases referenced by the Exceptions constitutes a list of cases without any connection to its contention. The Union does not explain how any of the case decisions apply to the facts of this case. Accordingly, the list of cases does not establish that the award is contrary to any law, rule or regulation.
The Union argues that the award is inconsistent with the "APA ... [G]uidelines." Exceptions at 8. We assume from the context of the exceptions that this refers to the American Psychological Association Guidelines. As the APA Guidelines do not constitute a law, and the Union's argument pertains to the merits of the Agency's claim, we do not construe this argument as a contrary to law contention. Accordingly, the Union's reliance on the APA Guidelines is misplaced.
In sum, we find that these assertions do not establish that the award is contrary to law, rule or regulation and we deny the exception.
D. The Union Has Not Demonstrated that the Award
Fails to Draw
Its Essence from the Parties' Agreement
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See AFGE Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as [ v61 p815 ] to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
Article 30, Section a. of the parties' agreement provides that disciplinary action will be taken only for just and sufficient cause and to promote the efficiency of the service. Article 30, Section c. of the agreement states that the parties endorse the concept of progressive discipline, but acknowledge that there may be offenses so egregious as to warrant penalties for the first offense up to and including removal. The Arbitrator found that the grievant had failed to properly document numerous inmate records in the PDS. The Arbitrator also found that the warden had reduced the proposed five day suspension to a three day suspension based on the grievant's long-standing service to the prison. Applying the essence standard set forth above, we conclude that the Union has failed to demonstrate how the Arbitrator's application of these agreement standards to the facts of this case renders the award deficient. See United States Dep't of Veterans Affairs, Reg'l Office, Boston, Mass., 51 FLRA 1769, 1774 (1996).
Moreover, regarding the Union's contention that Article 30, Section e. of the parties' agreement was violated, the Arbitrator found that "the documentation used by the warden to reach his decision was shared with the [g]rievant." Award at 14. Accordingly, the Union has not established that the award fails to draw its essence from Article 30,
As such, the Union has failed to demonstrate that the Arbitrator's findings are irrational, unfounded, implausible, or manifest a disregard for the agreement. Consequently, the Union has not demonstrated that the award is deficient on essence grounds. See, e.g., AFGE, Local 217, 60 FLRA 459, 461 (2004). Accordingly, we deny the exception.
E. The Union Has Not Demonstrated that the Award Is Based on
To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. AFGE, Local 1923, 51 FLRA 576, 579 (1995).
The Union contends that the award is based on various nonfacts. In particular, the Union asserts that the Arbitrator was in error regarding the grievant's access to information under FOIA, the year in which an alleged anti-Union animus act occurred, and the identification of an arbitration hearing exhibit. However, without regard to whether these factual findings are accurate, we find that they are not central facts underlying the award, so that the Arbitrator's decision would have been different had he decided these facts differently. As such, the Union has failed to establish that the award is based on nonfacts. See, e.g., AFGE, Local 2328, 61 FLRA 510, 513 (2006) (matters were not central facts, therefore, award not based on a nonfact). Accordingly, we deny the exception.
F. The Union Has Not Demonstrated that the Arbitrator Exceeded
We construe the Union's assertions that the Arbitrator admitted into evidence material concerning an additional charge that is not part of the Agency's decision letter, and that the Arbitrator failed to rule on an unfair labor practice charge, as exceeds authority claims. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority or awards relief to persons who are not encompassed within the grievance. See United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).
First, the Union contends that the Arbitrator admitted into evidence material concerning an additional charge that is not a part of the Agency's contention in its decision letter. We construe this as a claim that the Arbitrator resolved an issue not submitted to arbitration. The issue submitted to arbitration was whether the Agency violated the parties' agreement when it suspended the grievant for three days for failure to follow policy. The Arbitrator resolved that issue, and in doing so, he considered testimony regarding the grievant's alleged failure to make potential suicide-related entries into the inmates' records in the PDS. As the Arbitrator's actions and his award are directly responsive and confined to the stipulated issue, the Union has failed to demonstrate that the Arbitrator exceeded his authority. See, e.g., AFGE, Local 3495, 60 FLRA at 511-12 (citing [ v61 p816 ] Fed. Deposit Ins. Corp., Chicago Region, 45 FLRA 437, 447 (1992)).
Second, the Union contends that the Arbitrator failed to rule on an unfair labor practice charge submitted to him concerning a purported change regarding the input of certain information into the PDS system. We construe this as a claim that the Arbitrator failed to resolve an issue submitted to arbitration. In this connection, we note that the parties stipulated the issue for the Arbitrator to resolve, and that issue does not include any reference to a purported change to the PDS system. See Award at 3. Accordingly, we conclude that the Arbitrator did not fail to resolve an issue submitted to arbitration.
Based on the above discussion, we find that the Arbitrator did not exceed his authority and we deny the exception.
The exceptions are denied.
Footnote # 1 for 61 FLRA No. 163 - Authority's Decision
The parties dispute whether 21or 26 records were in contention. The Arbitrator determined that there were 26 records in contention. However, whether 21 or 26 records were under review is not relevant to the outcome of the exception.
Footnote # 2 for 61 FLRA No. 163 - Authority's Decision
Footnote # 3 for 61 FLRA No. 163 - Authority's Decision
The Douglas factors, established by the Merit Systems Protection Board in Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305- 06 (1981), govern the appropriateness of penalties in adverse actions under 5 U.S.C. §§ 4303 and 7512. See, e.g., United States Gen. Servs. Admin., Northeast & Caribbean Region, New York, N.Y., 61 FLRA 68, 68 n.2 (2005).
Footnote # 4 for 61 FLRA No. 163 - Authority's Decision
Section a. The provisions of this article apply to disciplinary and adverse actions which will be taken only for just and sufficient cause and to promote the efficiency of the service, and nexus will apply.
. . . .
Section c. The parties endorse the concept of progressive discipline designed primarily to correct and improve employee behavior except that the parties recognize that there are offenses so egregious as to warrant severe sanctions for the first offense up to and including removal.
See Joint Exhibit 1.
Footnote # 5 for 61 FLRA No. 163 - Authority's Decision
Absent extraordinary circumstances, issues involving arbitrator conduct at the hearing should be raised at the hearing. When they could have been, but were not raised before the arbitrator, such issues will not be considered for the first time on review of an award unless extraordinary circumstances are present. See, e.g., Bremerton Metal Trades Council, 59 FLRA 583, 588 (2004). It is clear from the record that the Union raised these matters to the Arbitrator at the hearing. See, e.g., Exceptions at 5 (Ref. pages 117-18, lines 11-15).