[ v41 p535 ]
41:0535(53)AR
The decision of the Authority follows:
41 FLRA No. 53
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 Howard M. Golob 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 did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance over a 5-day suspension. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Preliminary Matter
The Union's exceptions were filed both with the Authority and with the Equal Employment Opportunity Commission (EEOC). Subsequent to the filing of the exceptions with the Authority, the grievant filed with the Authority a copy of his appeal of the EEOC's dismissal of the exceptions as premature. The record does not disclose the disposition of the appeal. As it is not asserted, or otherwise apparent, that the appeal affects the Authority's consideration of the exceptions in this case, we will not address it further.(*)
III. Background and Arbitrator's Award
The Arbitrator found that the grievant, a high voltage technician and former Union representative, works in the control room of the Agency's powerhouse, which is located in a fenced industrial area. The Arbitrator noted that notices are posted at entrances to the industrial area informing employees that, among other things, protective glasses must be worn in the area. The Arbitrator also noted that the Agency had determined that employees who might be required to enter a hazardous area to respond to an emergency were required to wear such personal protective equipment.
According to the Arbitrator, the grievant's supervisor observed the grievant working in the control room without wearing safety glasses. The supervisor gave the grievant two direct orders to put on safety glasses, to which the grievant refused to respond. The supervisor then instructed the grievant to leave the control room, "which [the grievant] did do . . . after putting on the safety glasses." Award at 6.
The Agency issued the grievant a 5-day suspension for failure to follow a supervisory order and failure to wear protective equipment. Subsequently, according to the Arbitrator, the grievant "filed a grievance and also, a complaint with the EEO and, after that agency's investigation, the suspension was cancelled . . . based on a procedural error, reimbursing grievant for five (5) calendar days pay." Id. The Agency then reinitiated the 5-day suspension. After the grievant served the second 5-day suspension, he filed a grievance requesting that the suspension be rescinded. When the issue was not resolved, the matter was submitted to arbitration on the following stipulated issues:
1. Was the five (5) calendar day suspension issued [the grievant] on 24 November 1987 in violation of the Collective Bargaining Agreement between the parties herein?
2. If so, what shall the remedy be?
Id. at 2.
Before the Arbitrator, the Union argued that the Agency had not proved that the grievant failed to follow his supervisor's order to wear safety glasses and that the supervisor's order was not proper. With respect to the latter point, the Union maintained that there was no policy in effect requiring employees to wear safety glasses throughout the industrial area and that the grievant's work station, the control room, was not a hazardous area. The Union argued also that the penalty imposed on the grievant was excessive.
The Arbitrator stated that the Agency's "Public Works Group Superintendent made a pronouncement that all public works employees are supposed to be decked out with Personal Protective Equipment from muster to muster, regardless of the circumstances." Id. at 3-4. The Arbitrator also stated that the Agency "had determined that eye protection was required in the power plant, anyone working there needed such protection and anyone, who might have to enter the hazardous area in an emergency should have be [sic] dressed in the [personal protective equipment] and be prepared to respond to an emergency immediately." Id. at 9. The Arbitrator concluded that the grievant had refused to comply with a direct, valid order from his supervisor to wear safety glasses. The Arbitrator stated that although there was "animosity" between the grievant and his supervisor, "any acts based upon that animosity is [sic] irrelevant herein, as long as one reason for the disciplinary act was for a legitimate business reason, i.e. having an employee safe and available immediately for an emergency[.]" Id. at 10. The Arbitrator concluded that the 5-day suspension did not violate the parties' collective bargaining agreement and denied the grievance.
IV. First Exception
A. The Union's Contentions
The Union claims that no evidence supports the Arbitrator's statement that the Agency's Public Works Group Superintendent required employees to wear personal protective equipment "from muster to muster, regardless of the circumstance[s]." Exceptions at 2 (quoting Award at 4). The Union contends that the Arbitrator made the statement "to benefit management's position" and that the statement led the Arbitrator "to a bias[ed] result." Id.
B. Analysis and Conclusions
We construe the Union's argument as a claim that the award is deficient because the Arbitrator was biased. To demonstrate that an award is deficient on this basis, it must be shown that: (1) the award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator was guilty of misconduct by which the rights of a party were prejudiced. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 700, 704 (1990).
The Union has not demonstrated that the award was procured by improper means, that there was partiality or corruption on the Arbitrator's part, or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced. Accordingly, the Union's allegation that the Arbitrator was biased provides no basis for finding the award deficient. See National Labor Relations Board and National Labor Relations Board Union, 35 FLRA 421, 427 (1990).
In our view, the Union's exception constitutes mere disagreement with the Arbitrator's finding of fact regarding the Agency's requirement that employees wear safety glasses. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 868 (1990) (Dependents Schools).
V. Second Exception
A. The Union's Contentions
The Union disputes the Arbitrator's statements that: (1) the issue concerned a 5-day suspension issued in November 1987; (2) the incident occurred in the Agency's control room; and (3) the grievant filed a grievance over the first suspension. According to the Union: (1) the disputed suspension was issued in June 1988; (2) the incident occurred in "a 'booth' . . . and NOT in 'the control room'"; and (3) the grievant did not file a grievance over the first suspension. Exceptions at 1. With respect to the latter point, the Union claims that the grievant contested the first suspension by filing "an EEO case on discrimination" and that "the EEO Judge . . . remanded the EEO case on DISCRIMINATION to be adjudicated at arbitration[.]" Id. at 5. The Union claims that the Arbitrator's erroneous statements indicate that the Arbitrator "ignor[ed] relevant information" and did not understand the issues before him. Id.
B. Analysis and Conclusions
We construe the Union's assertions that the award contains erroneous information 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, it must be demonstrated that the central fact underlying the award is clearly erroneous, and constitutes a gross mistake of fact but for which a different result would have been reached by the Arbitrator. See Dependents Schools, 36 FLRA at 867.
The Union has not demonstrated that any of the alleged misstatements by the Arbitrator were central facts underlying the award. Accordingly, even if the statements were clearly erroneous, the exception does not demonstrate that the award is based on nonfacts. Instead, we conclude that the exception is an attempt to relitigate the merits of the grievance and does not demonstrate that the award is deficient. See, for example, id.
VI. Third Exception
A. The Union's Contentions
The Union argues that the Arbitrator "chose not to evaluate, or make reference to any of the defense exhibits[.]" Exceptions at 5. The Union claims that the Arbitrator ignored the specific purpose for which the Union's exhibits were submitted as well as relevant provisions of the parties' collective bargaining agreement and, instead, relied on irrelevant, "outdated," and improper evidence in denying the grievance. Id. The Union notes, in this regard, that although the Arbitrator originally requested the submission of a transcript of a previous arbitration hearing, he subsequently requested only certain pages from the transcript. The Union also claims that the Arbitrator failed to follow certain arbitration principles, including "due process," "double jeopardy," and "management also at fault." Id. at 8-9.
B. Analysis and Conclusions
We construe the Union's assertions as a claim 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 by, among other things, refusing to consider pertinent and material evidence. See, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991) (Hill Air Force Base). An arbitrator has considerable latitude in the conduct of a hearing, however, and the fact that an 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 U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 773 (1990).
The Union has not demonstrated that the Arbitrator refused to consider pertinent and material evidence. First, an arbitrator is not required to reference and discuss all allegations in a grievance or the parties' arguments. See, for example, International Organization of Masters, Mates and Pilots, Marine Division, ILA, Canal Pilots Branch and Panama Canal Commission, 39 FLRA 707, 715 (1991). Moreover, the mere fact that an arbitrator limits the submission of evidence does not show that the arbitrator failed to conduct a fair hearing. See, for example, Dependents Schools, 36 FLRA at 869.
Finally, we reject the Union's assertions that the award is deficient because the Arbitrator failed to apply established arbitration principles. These assertions are mere disagreements with the Arbitrator's findings of fact and evaluation of the evidence and testimony presented at the hearing and, as such, provide no basis for finding the award deficient. See, for example, U.S. Department of Veterans Affairs, Medical Center, Memphis, Tennessee and National Association of Government Employees, Local R5-66, 34 FLRA 893, 896 (1990) (Medical Center).
VII. Fourth Exception
A. The Union's Contentions
The Union asserts that the Arbitrator failed to address "any concern associated with discriminatory argument even though he was well aware that an EEO Judge had remanded this case back to the grievance process with the intent that discriminatory allegations would be addressed." Exceptions at 7.
B. Analysis and Conclusions
We construe the Union's argument as a claim that the Arbitrator exceeded his authority by failing to address the issues presented to him, and we conclude that the Union fails to establish that the award is deficient on this basis.
The issues presented to the Arbitrator, as stipulated by the parties, were:
1. Was the five (5) calendar day suspension issued [the grievant] on 24 November 1987 in violation of the Collective Bargaining Agreement between the parties herein?
2. If so, what shall the remedy be?
Award at 2.
The Arbitrator concluded that the grievant had refused to comply with a "direct, valid order" from his supervisor and that "the suspension was not in violation of the Collective Bargaining Agreement." Id. at 9. Accordingly, the award is directly responsive and properly confined to the issues as stipulated by the parties. Moreover, nothing in the award, or the record as a whole, shows that, in resolving the stipulated issues, the Arbitrator was required to address or resolve allegations that the Agency unlawfully discriminated against the grievant. In particular, the Union has not substantiated its assertion that "an EEO Judge had remanded this case back to the grievance process with the intent that discriminatory allegations would be addressed." Exceptions at 7. As the Arbitrator resolved the issues stipulated to him, the Union's fourth exception provides no basis for finding the award deficient. See, for example, U.S. Department of Agriculture, Food Safety and Inspection Service, Western Region and National Joint Council of Food Inspection Locals, Southwest Council, Local 925, American Federation of Government Employees, 36 FLRA 393, 399-400 (1990).
VIII. Decision
The Union's exceptions are denied.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ In dismissing the exceptions, the EEOC cited 29 C.F.R. § 1613.231(b), which provides in relevant part:
A complainant may appeal to the Commission on issue of employment discrimination raised in a negotiated grievance procedures . . . where the agency's negotiated labor-management agreement permits such issues to be raised. A complainant may appeal the decision:
(1) Of the agency head or designee on the grievance;
(2) Of the arbitrator on the grievance; or
(3) Of the Federal Labor Relations Authority (FLRA) on exceptions to the arbitrator's award.
A complainant may not appeal under this subsection, however, when the matter initially raised in the negotiated grievance procedure is still ongoing in that process, is in arbitration or is before the FLRA. Any appeal prematurely filed in such circumstances shall be dismissed without prejudice.
Enclosure 2 to Grievant's April 17, 1991, Letter to EEOC.