[ v05 p463 ]
05:0463(59)AR
The decision of the Authority follows:
5 FLRA No. 59
VETERANS ADMINISTRATION
REGIONAL OFFICE
Activity
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 556, AFL-CIO
Union
Case No. 0-AR-25
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR R. CHARLES BOCKEN FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).
ACCORDING TO THE ARBITRATOR'S AWARD, THIS DISPUTE INVOLVED THE
ACTIVITY'S SUSPENSION OF THE GRIEVANT. THE ARBITRATOR EXPLAINED THE
BACKGROUND AS CONCERNING A NEW PROCEDURE ESTABLISHED BY THE ACTIVITY FOR
A MORE EQUITABLE ASSIGNMENT OF APPRAISALS FOR ITS LOAN GUARANTEE
PROGRAM. WHEN IT WAS DISCOVERED THAT THE GRIEVANT HAD NOT BEEN
FOLLOWING THE NEW PROCEDURE, SHE WAS SUSPENDED FOR REFUSING TO OBEY A
DIRECT ORDER. SHE FILED A GRIEVANCE PROTESTING HER SUSPENSION AND THE
GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION.
THE PARTIES SUBMITTED TO THE ARBITRATOR THE ISSUES OF WHETHER THE
SUSPENSION WAS FOR A JUSTIFIABLE REASON AND, IF SO, WHETHER THE LENGTH
OF THE SUSPENSION WAS APPROPRIATE PUNISHMENT. THE ARBITRATOR FOUND THAT
THE EVIDENCE WAS CLEAR AND CONVINCING THAT THE GRIEVANT HAD BEEN GIVEN
INSTRUCTIONS CONCERNING THE NEW PROCEDURE AND THAT SHE HAD BEEN ORDERED
TO FOLLOW THE NEW PROCEDURE. HE NOTED THAT THE GRIEVANT'S DEFENSE WAS
THAT WITHOUT THE NEW APPRAISAL PROCEDURE HAVING BEEN INCLUDED IN HER
POSITION DESCRIPTION, SHE WAS NOT FAILING TO FOLLOW ANY ORDER, BUT WAS
SIMPLY COMPLYING WITH HER POSITION DESCRIPTION. HOWEVER, THE ARBITRATOR
CONCLUDED THAT THIS DEFENSE WAS WITHOUT MERIT BECAUSE NO EVIDENCE WAS
PRESENTED THAT THE NEW PROCEDURE HAD TO BE INCORPORATED IN THE
GRIEVANT'S POSITION DESCRIPTION TO HAVE BEEN VALID. THUS, HE FOUND THAT
THE GRIEVANT WAS OBLIGATED TO FOLLOW THE INSTRUCTIONS AND ORDER OF HER
SUPERVISORS. HE FURTHER FOUND THAT THE GRIEVANT HAD BEEN GIVEN AMPLE
OPPORTUNITY TO COMPLY WITH THE ORDER, BUT THAT SHE HAD WILLFULLY REFUSED
TO DO SO. ACCORDINGLY, THE ARBITRATOR RULED THAT THE GRIEVANT'S
PERSISTENT REFUSAL TO CARRY OUT THE INSTRUCTIONS WAS UNREASONABLE AND
INSUBORDINATE.
AS TO THE PENALTY, THE ARBITRATOR RULED THAT THE LENGTH OF THE
SUSPENSION WAS NOT UNREASONABLE. IN THIS RESPECT, HE SPECIFICALLY NOTED
THAT THE GRIEVANT'S CONDUCT EXTENDED OVER A PERIOD OF TIME AND WAS
NEITHER THE RESULT OF A MISUNDERSTANDING NOR AN ISOLATED AND SPONTANEOUS
OCCURRENCE; THAT THE GRIEVANT WAS OFFERED EVERY OPPORTUNITY TO COMPLY
WITH THE ORDER GIVEN HER; AND THAT THERE WAS NO EXCUSE FOR HER FAILURE
TO FOLLOW THE NEW APPRAISAL PROCEDURE WHICH HAD BEEN ESTABLISHED TO
PROVIDE A MORE EQUITABLE TREATMENT OF ASSIGNMENTS TO APPRAISERS.
THE ARBITRATOR ALSO SPECIFICALLY ADDRESSED THE UNION'S ARGUMENT THAT
THE GRIEVANT HAD BEEN PREJUDICED BY THE ACTIVITY'S REFUSAL TO PROVIDE
THE UNION WITH ADVANCE ACCESS TO SOME OF MANAGEMENT'S DOCUMENTARY
EVIDENCE. THE ARBITRATOR AGREED THAT MANAGEMENT SHOULD HAVE BEEN MORE
OPEN WITH THE UNION. HOWEVER, HE NOTED THAT THE ESSENTIAL WITNESSES TO
THE ACTS OF INSUBORDINATION WERE PRESENT AT THE HEARING AND TESTIFIED;
THAT THE GRIEVANT WAS PRESENT AT THE HEARING, TESTIFIED ON HER OWN
BEHALF, AND HER UNION REPRESENTATIVE EXERCISED THE RIGHT OF CROSS
EXAMINATION OF MANAGEMENT WITNESSES; AND THAT THE UNION REPRESENTATIVE
DID NOT REQUEST A CONTINUATION OF THE HEARING TO EXAMINE ANY DOCUMENTARY
EVIDENCE AND FURTHER PREPARE FOR THE GRIEVANT'S DEFENSE. THUS, THE
ARBITRATOR CONCLUDED THAT THERE WAS NO INDICATION THAT ANY SUBSTANTIAL
RIGHT OF THE GRIEVANT HAD BEEN PREJUDICED AT THE HEARING. FOR ALL THESE
REASONS, THE ARBITRATOR DENIED THE GRIEVANCE.
THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD WITH THE
AUTHORITY. THEREAFTER, THE UNION AND THE GRIEVANT FILED WITH THE
ARBITRATOR A MOTION, OPPOSED BY THE ACTIVITY, TO HAVE THE ARBITRATOR
REOPEN OR RECONSIDER HIS WARD. THE ARBITRATOR DENIED THE MOTION,
DETERMINING THAT HE WAS WITHOUT JURISDICTION PURSUANT TO THE PARTIES'
NEGOTIATED AGREEMENT TO REOPEN OR RECONSIDER HIS AWARD. THE UNION HAS
ALSO FILED AN EXCEPTION TO THE ARBITRATOR'S DENIAL OF THE MOTION TO
REOPEN. /1/
THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
/3/ THE AGENCY FILED AN OPPOSITION.
THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
CONTRARY TO ANY LAW, RULE, OR REGULATION OR IS DEFICIENT ON OTHER
GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS CASES.
IN ITS FIRST EXCEPTION TO THE ARBITRATOR'S AWARD, THE PETITIONER /4/
CONTENDS THAT THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION TO THE
GRIEVANT AND THEREFORE THE AWARD MUST BE SET ASIDE. IN SUPPORT OF THIS
EXCEPTION, THE PETITIONER SPECIFICALLY IDENTIFIES NUMEROUS ACTS AND
OMISSIONS BY THE UNION AND ITS REPRESENTATIVE BEFORE AND DURING THE
ARBITRATION HEARING WHICH THE PETITIONER ASSERTS CONSTITUTE A BREACH OF
THE DUTY OF FAIR REPRESENTATION. THE PETITIONER MAINTAINS THAT THE
REASONS EXPRESSED BY THE U.S. SUPREME COURT IN VACA V. SIPES /5/ AND
HINES V. ANCHOR MOTOR FREIGHT, INC. /6/ FOR FINDING A DUTY OF FAIR
REPRESENTATION IN THE PRIVATE SECTOR ALSO APPLY TO THE FEDERAL SECTOR,
AND THEREFORE THE AWARD SHOULD BE FOUND DEFICIENT.
IN ACCORDANCE WITH SECTION 7122(A)(2) OF THE STATUTE AND PART 2425 OF
THE AUTHORITY'S RULES, THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN
AN EXCEPTION PRESENTS AND SUPPORTS A GROUND "SIMILAR TO THOSE APPLIED BY
FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS (CASES)." 5
U.S.C. 7122(A)(2); 5 CFR 2425.3. FOR THE REASONS THAT FOLLOW, AN
EXCEPTION ALLEGING THAT A UNION BREACHED ITS DUTY OF FAIR REPRESENTATION
DOES NOT STATE A GROUND "SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS (CASES)" IN JUDICIALLY
REVIEWING AN ARBITRATION AWARD AND THUS PROVIDES NO BASIS FOR FINDING AN
AWARD DEFICIENT IN THE FEDERAL SECTOR.
THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON CONFERENCE, IN
EXPLAINING THE PROVISIONS FOR REVIEW OF ARBITRATION AWARDS, STATED IN
THE CONFERENCE REPORT WHICH ACCOMPANIED THE BILL THAT WAS ENACTED AND
SIGNED INTO LAW, AS FOLLOWS: /7/
THE AUTHORITY WILL ONLY BE AUTHORIZED TO REVIEW THE AWARD OF THE
ARBITRATOR ON VERY NARROW
GROUNDS SIMILAR TO THE SCOPE OF JUDICIAL REVIEW OF AN ARBITRATOR'S
AWARD IN THE PRIVATE
SECTOR. CONSISTENT WITH CONGRESSIONAL INTENT, THE AUTHORITY, IN
DETERMINING WHETHER A PARTICULAR ARBITRATION AWARD BEING REVIEWED IS
DEFICIENT UNDER THE PROVISIONS OF SECTION 7122(A)(2) OF THE STATUTE,
APPLIES ONLY GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR CASES IN WHICH AN ARBITRATION AWARD IS BEING DIRECTLY
REVIEWED, SUCH AS IN CASES ARISING FROM AN ACTION TO ENFORCE, MODIFY, OR
VACATE THE AWARD. AN EXCEPTION THAT AN ARBITRATOR'S AWARD IS DEFICIENT
BECAUSE THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION IS NOT
SIMILAR TO ANY GROUND APPLIED BY FEDERAL COURTS TO FIND AN ARBITRATION
AWARD DEFICIENT IN AN ACTION DIRECTLY REVIEWING THAT AWARD, SUCH AS IN
AN ACTION TO ENFORCE, MODIFY, OR VACATE THE AWARD.
HINES V. ANCHOR MOTOR FREIGHT, INC., /8/ WHICH THE PETITIONER HAS
CITED AS GENERAL SUPPORT FOR HIS EXCEPTION, INVOLVED AN ACTION BROUGHT
BY CERTAIN DISCHARGED EMPLOYEES (WHOSE DISCHARGES HAD BEEN UPHELD IN
ARBITRATION) UNDER SECTION 301 OF THE LABOR-MANAGEMENT RELATIONS ACT (29
U.S.C. 185) CHARGING THE EMPLOYER WITH A BREACH OF THE COLLECTIVE
BARGAINING AGREEMENT (THAT DISCHARGES SHALL ONLY BE FOR JUST CAUSE) AND
THE UNION WITH A BREACH OF ITS DUTY OF FAIR REPRESENTATION.
CHARACTERIZING THE ACTION AS ONE FOR "WRONGFUL DISCHARGE," THE SUPREME
COURT RULED THAT THE EMPLOYEES COULD OBTAIN JUDICIAL REVIEW OF THE
PROPRIETY OF THEIR DISCHARGES, DESPITE THE ADVERSE FINAL AND BINDING
ARBITRATION AWARD, BUT ONLY IF THEY FIRST DEMONSTRATED THAT THEIR UNION
BREACHED ITS DUTY OF FAIR REPRESENTATION IN CONNECTION WITH THE
ARBITRATION PROCEEDING. ON THE BASIS OF HINES, IT HAS BEEN HELD THAT
SUCH A CLAIM THAT THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION IS
NOT IN THE NATURE OF AN ACTION TO VACATE OR MODIFY THE ARBITRATION AWARD
BECAUSE IT IS NOT DIRECTLY CONCERNED WITH OBTAINING FEDERAL COURT REVIEW
OF THE ARBITRATION AWARD AND A FEDERAL COURT ORDER VACATING THE AWARD.
SMART V. ELLIS TRUCKING CO., INC., 580 F.2D 215, 219 (6TH CIR. 1978),
CERT. DENIED 440 U.S. 958 (1979). ALTHOUGH IT HAS BEEN RECOGNIZED THAT
SUCH CLAIMS MAY IN SOME CASES ULTIMATELY RESULT IN A JUDGMENT THAT
EFFECTIVELY NULLIFIES THE ARBITRATION AWARD INVOLVED, THESE CLAIMS OF A
BREACH OF THE DUTY OF FAIR REPRESENTATION ARE VIEWED AS DISTINCT FROM
AND INDEPENDENT OF THE GRIEVANCE AND ARBITRATION PROCESS. ID. AT 219.
/9/
ACCORDINGLY, THE EXCEPTION THAT THE ARBITRATOR'S AWARD IS DEFICIENT
BECAUSE THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION DOES NOT
STATE A GROUND ON WHICH THE AUTHORITY MAY FIND AN ARBITRATION AWARD
DEFICIENT UNDER THE STATUTE. THEREFORE, THIS FIRST EXCEPTION PROVIDES
NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND
SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS. /10/
IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR
FAILED TO CONDUCT A FAIR HEARING BY FAILING TO CONSIDER MITIGATING
CIRCUMSTANCES AND BY FAILING TO EXCLUDE ERRONEOUS AND IMPROPER EVIDENCE.
WITH RESPECT TO THE ARBITRATOR'S ASSERTED FAILURE TO CONSIDER
MITIGATING CIRCUMSTANCES, THE UNION CLAIMS THAT MANAGEMENT WITNESSES
TESTIFIED THAT THE GRIEVANT DID NOT REFUSE TO PERFORM IN ACCORDANCE WITH
THE NEW PROCEDURE AND THAT THE GRIEVANT DID NOT STATE THAT SHE WOULD NOT
PERFORM IN ACCORDANCE WITH THE NEW PROCEDURE. THE UNION ALSO ARGUES
THAT THERE WAS TESTIMONY AS TO CONFUSION REGARDING THE NEW PROCEDURE
WHICH, CONTRARY TO THE FINDINGS OF THE ARBITRATOR, INDICATED THAT THERE
WAS NO "WILLFUL" OR "DELIBERATE" REFUSAL BY THE GRIEVANT TO FOLLOW THE
PROCEDURE.
ALTHOUGH THE AUTHORITY WILL FIND AN ARBITRATOR'S AWARD DEFICIENT ON
THE GROUND THAT THE ARBITRATOR FAILED TO CONDUCT A FAIR HEARING BY
REFUSING TO HEAR PERTINENT AND MATERIAL EVIDENCE, NATIONAL BORDER PATROL
COUNCIL AND NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND
UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
SERVICE, 3 FLRA NO. 62 (1980), THE UNION'S CONTENTION THAT THE
ARBITRATOR FAILED TO CONDUCT A FAIR HEARING BY FAILING TO CONSIDER
MITIGATING CIRCUMSTANCES PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT. AS WAS INDICATED IN NATIONAL BORDER PATROL COUNCIL, FEDERAL
COURTS FIND ARBITRATION AWARDS DEFICIENT AS DENYING A FAIR HEARING
PRIMARILY WHEN AN ARBITRATOR'S CHALLENGED RULINGS HAD PRECLUDED
CONSIDERATION OF ALL THE PERTINENT AND MATERIAL EVIDENCE. IN THIS CASE,
HOWEVER, THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR REFUSED TO
HEAR CERTAIN TESTIMONY OR REFUSED TO ACCEPT CERTAIN PROFFERED EVIDENCE.
INSTEAD, THE UNION'S ARGUMENT IS SOLELY THAT THE ARBITRATOR FAILED, IN
ITS VIEW, TO PROPERLY CONSIDER TESTIMONY THAT WAS ACTUALLY HEARD. THUS,
THE UNION'S CONTENTION THAT THE ARBITRATOR FOR THIS REASON FAILED TO
CONDUCT A FAIR HEARING IN EFFECT REPRESENTS A DISAGREEMENT WITH THE
ARBITRATOR'S EVALUATION OF THE EVIDENCE AND TESTIMONY BEFORE HIM AND IS
AN ATTEMPT TO RELITIGATE THE MERITS OF THIS CASE BEFORE THE AUTHORITY.
THIS CONTENTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND FEDERAL
AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR, SOUTHWEST
REGION, 2 FLRA NO. 85 (1980); VETERANS ADMINISTRATION HOSPITAL, PERRY
POINT, MARYLAND AND LOCAL 331, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, 3 FLRA NO. 34 (1980).
THE UNION HAS ALSO CONTENDED THAT THE ARBITRATOR FAILED TO CONDUCT A
FAIR HEARING BY NOT EXCLUDING ERRONEOUS AND IMPROPER EVIDENCE. THE
UNION ASSERTS THAT THE ARBITRATOR ERRED IN ADMITTING INTO EVIDENCE
MATTERS THAT RELATED TO PRIOR GRIEVANCES AND DISPUTES BETWEEN THE
GRIEVANT AND MANAGEMENT OFFICIALS BECAUSE THEY WERE NOT RELEVANT TO THE
SUBJECT MATTER OF THE GRIEVANCE. IT ALSO ASSERTS THAT THE ARBITRATOR
ERRED IN ADMITTING EVIDENCE AS TO CERTAIN REQUIREMENTS OF THE NEW
PROCEDURE BECAUSE THIS WAS EVIDENCE WHICH THE ARBITRATOR ACKNOWLEDGED
THAT THE UNION SHOULD HAVE BEEN PROVIDED ADVANCE ACCESS TO, BUT WAS NOT.
THE AUTHORITY HAS PREVIOUSLY ADDRESSED, IN NATIONAL BORDER PATROL
COUNCIL, SUPRA, THE CONTENTION THAT AN ARBITRATOR'S AWARD WAS DEFICIENT
BECAUSE THE ARBITRATOR FAILED TO CONDUCT A FAIR HEARING BY NOT EXCLUDING
CERTAIN EVIDENCE. IN THAT CASE THE AUTHORITY DETERMINED THAT SUCH A
CONTENTION PROVIDED NO BASIS FOR FINDING THE AWARD DEFICIENT BY
EMPHASIZING THAT ALTHOUGH REFUSAL TO HEAR EVIDENCE MAY CONSTITUTE A
DENIAL OF A FAIR HEARING, FEDERAL COURTS HAVE LONG RECOGNIZED AND
ACCEPTED THE ARBITRATION PRACTICE OF LIBERAL ADMISSION BY ARBITRATORS OF
BOTH TESTIMONY AND EVIDENCE. THUS, THE UNION'S ASSERTION THAT IT WAS
ERROR FOR THE ARBITRATOR TO ADMIT MATTERS ASSERTEDLY NOT RELEVANT TO THE
GRIEVANCE FAILS TO SUPPORT ITS CONTENTION THAT THE ARBITRATOR FAILED TO
CONDUCT A FAIR HEARING. THE UNION'S FURTHER ASSERTION THAT IT WAS ERROR
TO ADMIT EVIDENCE AS TO THE REQUIREMENTS OF THE NEW PROCEDURE BECAUSE
THIS WAS EVIDENCE TO WHICH THE UNION SHOULD HAVE BEEN PROVIDED ADVANCE
ACCESS LIKEWISE FAILS TO SUPPORT ITS CONTENTION THAT THE ARBITRATOR
FAILED TO CONDUCT A FAIR HEARING. IN THIS RESPECT, AS WAS NOTED, THE
ARBITRATOR SPECIFICALLY ADDRESSED THE QUESTION OF WHETHER MANAGEMENT'S
ACTIONS OF REFUSING THE UNION ADVANCE ACCESS TO THIS EVIDENCE PRECLUDED
A FAIR HEARING. HE EXPRESSLY CONCLUDED AFTER CAREFUL CONSIDERATION OF
THE CONDUCT OF THE ENTIRE HEARING THAT THE PRESENTATION OF THIS EVIDENCE
DID NOT PREJUDICE ANY SUBSTANTIAL RIGHT OF THE GRIEVANT. THEREFORE, THE
UNION'S SECOND EXCEPTION THAT THE ARBITRATOR FAILED TO CONDUCT A FAIR
HEARING BY FAILING TO CONSIDER MITIGATING CIRCUMSTANCES AND BY FAILING
TO EXCLUDE ERRONEOUS AND IMPROPER EVIDENCE PROVIDES NO BASIS FOR FINDING
THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
AUTHORITY'S RULES AND REGULATIONS.
IN ITS THIRD EXCEPTION TO THE ARBITRATOR'S AWARD, THE UNION CONTENDS
THAT THE AWARD IS BASED ON NON-FACTS. IN SUPPORT THE UNION ASSERTS THAT
THE CENTRAL FACTS UNDERLYING THE AWARD ARE CLEARLY ERRONEOUS AND IN FACT
ARE A GROSS MISTAKE BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
REACHED. IN THIS RESPECT, IT IS MAINTAINED THAT THE AWARD RESTS ON TWO
CENTRAL DETERMINATIONS: (1) THAT THE GRIEVANT WAS GUILTY OF MULTIPLE,
REPEATED INFRACTIONS AND THEREFORE THE SUSPENSION WAS NOT UNREASONABLE;
AND (2) THAT THE ACTIVITY HAD SPECIFICALLY FOUND THAT THE GRIEVANT'S
MANNER OF ASSIGNING LOAN APPRAISAL WORK VIOLATED AGENCY REGULATION,
POLICY, OR OTHER AUTHORITY. THE UNION CLAIMS THAT BOTH OF THESE
DETERMINATIONS WERE ERRONEOUS AND THAT THE ARBITRATOR WOULD HAVE
REACHED
A DIFFERENT DECISION IF THESE CENTRAL FACTS HAD BEEN PROPERLY
DETERMINED.
THE AUTHORITY WILL FIND AN ARBITRATION AWARD DEFICIENT ON THE GROUND
THAT THE CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY ERRONEOUS AND
IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT
WOULD HAVE BEEN REACHED. UNITED STATES ARMY MISSILE MATERIEL READINESS
COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1858, AFL-CIO, 2 FLRA NO. 60 (1980). HOWEVER, IN THIS CASE THE
UNION HAS FAILED TO DEMONSTRATE THAT THE ALLEGED "NON-FACTS" WERE THE
CENTRAL FACTS UNDERLYING THE ARBITRATOR'S AWARD, THAT THEY WERE
CONCEDEDLY ERRONEOUS, AND THAT THEY WERE GROSS MISTAKES OF FACT BUT FOR
WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED BY THE ARBITRATOR.
UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND. MORE
PARTICULARLY, THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR NOT
ONLY ERRED IN HIS VIEW OF THE FACTS, BUT THAT THE ARBITRATOR'S
ARTICULATED BASIS FOR RENDERING THE AWARD WAS CONCEDEDLY AND
INDISPUTABLY IN ERROR. FURTHER, THE UNION HAS NOT DEMONSTRATED THAT THE
EVIDENCE IN THIS CASE DISCLOSES A GROSS MISTAKE OF FACT AND THAT BUT FOR
THE ARBITRATOR'S MISAPPREHENSION WITH RESPECT TO THIS FACT, AND IN
ACCORDANCE WITH HIS EXPRESSED RATIONALE, HE WOULD HAVE REACHED A
DIFFERENT RESULT IN HIS AWARD. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 987 AND WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, GEORGIA, 3 FLRA NO. 89 (1980). INSTEAD, THE
UNION'S ASSERTIONS, WHICH ARE DIRECTED TO THE ARBITRATOR'S ALLEGED
"ERRONEOUS DETERMINATIONS," CONSTITUTE NOTHING MORE THAN DISAGREEMENT
WITH THE ARBITRATOR'S FINDINGS OF FACT AND WITH HIS SPECIFIC REASONING
AND CONCLUSIONS BASED ON THE EVIDENCE AND TESTIMONY BEFORE HIM. SUCH
ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD DEFICIENT. UNITED
STATES ARMY MISSILE MATERIEL READINESS COMMAND. ACCORDINGLY, THE
UNION'S THIRD EXCEPTION THAT THE AWARD IS BASED ON NON-FACTS PROVIDES NO
BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
IN ITS FOURTH EXCEPTION, THE UNION CONTENDS THAT THE AWARD
CONSTITUTES AN ERRONEOUS INTERPRETATION AND APPLICATION OF LAW,
REGULATION, AND POLICY. PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE,
THE AUTHORITY WILL FIND AN AWARD DEFICIENT IF THE AWARD IS CONTRARY TO
LAW, RULE, OR REGULATION. HOWEVER, THE UNION HAS FAILED TO DEMONSTRATE
IN WHAT MANNER THIS AWARD IS CONTRARY TO LAW OR REGULATION. AS WAS
NOTED, THE ARBITRATOR DENIED THE GRIEVANCE (THAT QUESTIONED WHETHER THE
GRIEVANT'S SUSPENSION WAS FOR A JUSTIFIABLE REASON AND, IF SO, WHETHER
THE LENGTH OF THE SUSPENSION WAS APPROPRIATE PUNISHMENT) ON THE BASIS OF
THE EVIDENCE AND TESTIMONY BEFORE HIM WHICH HE FOUND TO BE CLEAR AND
CONVINCING THAT THE GRIEVANT'S REFUSAL TO CARRY OUT THE INSTRUCTIONS
GIVEN HER WAS UNREASONABLE AND INSUBORDINATE AND ON THE BASIS OF HIS
FINDING THAT SUCH INSUBORDINATION JUSTIFIED THE LENGTH OF SUSPENSION
GIVEN HER. THE UNION'S CITATION TO VARIOUS LAWS AND REGULATIONS ARE
MADE IN CONNECTION WITH ITS EXCEPTIONS REGARDING THE ALLEGED BREACH OF
THE DUTY OF FAIR REPRESENTATION AND THE ARBITRATOR'S FAILURE TO EXCLUDE
CERTAIN EVIDENCE. HOWEVER, AS PREVIOUSLY INDICATED, THESE EXCEPTIONS
PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT. FURTHER, THE UNION
HAS NOT OTHERWISE DEMONSTRATED IN WHAT MANNER THE AWARD ITSELF IS
CONTRARY TO ANY SPECIFIC LAW, RULE, OR REGULATION. ACCORDINGLY, THE
UNION'S FOURTH EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
RULES AND REGULATIONS.
IN ITS FIFTH EXCEPTION TO THE ARBITRATOR'S AWARD, THE UNION CONTENDS
THAT NEW PERTINENT AND MATERIAL EVIDENCE JUSTIFIES REVERSING THE AWARD.
IT APPEARS FROM THE UNION'S ASSERTIONS IN SUPPORT OF ITS EXCEPTION THAT
THE "NEW EVIDENCE" INCLUDES BOTH EVIDENCE IN EXISTENCE AT THE TIME OF
THE ARBITRATION HEARING THAT WAS NOT PRESENTED TO THE ARBITRATOR AND
EVIDENCE THAT HAS COME INTO EXISTENCE SINCE THE ARBITRATION HEARING.
AS PREVIOUSLY NOTED, THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN
AN EXCEPTION PRESENTS AND SUPPORTS A GROUND SIMILAR TO THOSE APPLIED BY
FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.
HOWEVER, FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS
CASES HAVE CONSISTENTLY HELD THAT ARBITRATION AWARDS ARE NOT SUBJECT TO
REVIEW ON THE BASIS EITHER OF EVIDENCE IN EXISTENCE AT THE TIME OF THE
ARBITRATION HEARING BUT NOT PRESENTED TO THE ARBITRATOR OR OF EVIDENCE
THAT HAS COME INTO EXISTENCE ONLY SINCE THE ARBITRATION HEARING. E.G.,
WASHINGTON-BALTIMORE NEWSPAPER GUILD, LOCAL 35 V. WASHINGTON POST CO.,
442 F.2D 1234 (D.C. CIR. 1971); BRIDGEPORT; ROLLING MILLS CO. V.
BROWN, 314 F.2D 885 (2D CIR.), CERT. DENIED 375 U.S. 821; (1963);
PAPERHANDLERS UNION NO. 1 V. U.S. TRUCKING CORP., 441 F.SUPP. 469
(S.D.N.Y. 1977). EVEN WHEN NEW EVIDENCE OR TESTIMONY IS DISCOVERED
WHICH WOULD HAVE RESULTED IN A DIFFERENT AWARD IF IT HAS BEEN PRESENTED
AT THE ARBITRATION HEARING, IT HAS BEEN EXPRESSLY HELD THAT THIS IS NOT
A SUFFICIENT GROUND FOR "VITIATING THE REQUIRED FINALITY OF THE ORIGINAL
AWARD." PAPERHANDLERS UNION, 441 F.SUPP. AT 475. LIKEWISE, IN
BRIDGEPORT ROLLING MILLS CO., 314 F.2D AT 885-86, THE COURT STATED:
THAT THE EMPLOYER. . . MAY HAVE HAD, OR MAY NOW HAVE, SUFFICIENT
EVIDENCE TO JUSTIFY (A
DIFFERENT RESULT) IS IRRELEVANT TO THE ISSUES THE ARBITRATOR HEARD
AND HAS NO BEARING UPON THE
ARBITRATOR'S DETERMINATION. . .
. . . .
(P)ARTIES, HAVING AGREED TO AN ARBITRATION OF THEIR DIFFERENCES, ARE
BOUND BY THE
ARBITRATION AWARD MADE UPON THE TESTIMONY BEFORE THE ARBITRATOR.
SIMILARLY, IN UPHOLDING THE DISTRICT COURT JUDGE'S ORDER, THE COURT IN
WASHINGTON-BALTIMORE NEWSPAPER GUILD, 442 F.2D AT 1238, APPROVINGLY
CITED THE JUDGE'S CONCLUSION THAT
(U)NLESS PARTIES ARE BOUND BY THE RECORDS MADE BEFORE THE
ARBITRATORS, THE PIECEMEAL OR
STAGGERED SUBMISSION OF EVIDENCE WOULD BE LIKELY TO ERODE THE
EFFECTIVENESS OF ARBITRATION AS
A SPEEDY AND EFFICIENT FORUM FOR RESOLVING LABOR DISPUTES. THESE
PRINCIPLES APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR CASES ARE
LIKEWISE APPLICABLE TO AUTHORITY REVIEW OF ARBITRATION AWARDS IN THE
FEDERAL SECTOR. THEREFORE, THE UNION'S FIFTH EXCEPTION THAT NEW
EVIDENCE JUSTIFIES REVERSING THE AWARD PROVIDES NO BASIS FOR FINDING THE
AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
AUTHORITY'S RULES AND REGULATIONS.
AS NOTED, THE UNION HAS ALSO FILED AN EXCEPTION TO THE ARBITRATOR'S
DENIAL OF THE UNION'S MOTION TO HAVE THE ARBITRATOR REOPEN OR RECONSIDER
HIS AWARD DENYING THE GRIEVANCE. IN ITS EXCEPTION TO THIS AWARD, THE
UNION CONTENDS THAT THE ARBITRATOR'S DECISION THAT HE WAS WITHOUT
AUTHORITY UNDER THE PARTIES' AGREEMENT TO REOPEN OR RECONSIDER HIS AWARD
DENYING THE GRIEVANCE IS CONTRARY TO CASE LAW. IN SUPPORT OF THIS
EXCEPTION, THE UNION EMPHASIZES THAT THE PRINCIPAL GROUNDS FOR
REQUESTING THAT THE ARBITRATOR REOPEN OR RECONSIDER HIS AWARD WERE THAT
THE GRIEVANT WAS NOT AFFORDED A FAIR HEARING AND THAT NEW PERTINENT AND
MATERIAL EVIDENCE DICTATED THAT THE MATTER SHOULD BE REOPENED TO HEAR
ADDITIONAL TESTIMONY. IN THESE CIRCUMSTANCES, THE UNION CLAIMS THAT
COURTS HAVE STATED THAT RECONSIDERATION IS PROPER TO COMPLETELY RESOLVE
MATTERS THAT HAVE BEEN SUBMITTED TO ARBITRATION FOR DETERMINATION.
THUS, THE UNION ARGUES THAT THE ARBITRATOR'S REFUSAL TO REOPEN OR
RECONSIDER HIS AWARD DENYING THE GRIEVANCE IS CONTRARY TO RELEVANT CASE
LAW.
WITHOUT DECIDING WHETHER ANY ARBITRATOR'S AWARD OR DECISION DECLINING
TO REOPEN OR RECONSIDER A PRIOR AWARD MAY BE FOUND DEFICIENT UNDER THE
STATUTE, THE UNION'S ASSERTIONS IN THIS CASE PROVIDE NO BASIS FOR
FINDING THE ARBITRATOR'S DENIAL DEFICIENT. IN REFUSING TO REOPEN OR
RECONSIDER HIS AWARD, THE ARBITRATOR DID NOT RULE THAT AN ARBITRATION
AWARD COULD NEVER BE REOPENED OR RECONSIDERED, BUT RATHER THAT HE WAS
WITHOUT JURISDICTION PURSUANT TO THE PARTIES' AGREEMENT BEFORE HIM IN
THIS CASE TO REOPEN OR RECONSIDER HIS AWARD. THUS, IN EFFECT, THE
UNION'S EXCEPTION REPRESENTS A DISAGREEMENT WITH THE ARBITRATOR'S
INTERPRETATION OF THE NEGOTIATED AGREEMENT AND IT IS WELL ESTABLISHED
THAT AN ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT IS NOT SUBJECT TO REVIEW. LOCAL 2532,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND UNITED STATES
SMALL BUSINESS ADMINISTRATION, CENTRAL OFFICE, 3 FLRA NO. 86 (1980).
MOREOVER, THE UNION HAS CITED NO CASES THAT SUPPORT ITS CONTENTION THAT
THE ARBITRATOR'S REFUSAL TO REOPEN OR RECONSIDER HIS AWARD IS CONTRARY
TO RELEVANT CASE LAW. THE UNION HAS CITED NO CASES IN WHICH AN
ARBITRATOR'S REFUSAL TO REOPEN OR RECONSIDER A PRIOR AWARD OF THAT
ARBITRATOR WAS FOUND TO BE DEFICIENT UNDER ANY CIRCUMSTANCES. RATHER,
THE CASES CITED BY THE UNION APPEAR TO STAND, AT BEST, FOR THE
PROPOSITION THAT AN ARBITRATOR IS NOT BARRED FROM REOPENING OR
RECONSIDERING A PRIOR AWARD, BUT RATHER IS PERMITTED IN THE ARBITRATOR'S
DISCRETION TO REOPEN OR RECONSIDER A PRIOR AWARD. FURTHERMORE, FOR THE
SAME REASONS THAT THE UNION'S CONTENTIONS THAT THE GRIEVANT WAS DENIED A
FAIR HEARING AND THAT NEW EVIDENCE JUSTIFIED REVERSING THE AWARD FAILED
TO PROVIDE A BASIS FOR FINDING THE AWARD DEFICIENT, THEY PROVIDE NO
BASIS FOR FINDING DEFICIENT, UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3
OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S REFUSAL TO
REOPEN OR RECONSIDER HIS INITIAL AWARD.
FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES, THE ARBITRATOR'S AWARD IS SUSTAINED.
ISSUED, WASHINGTON, D.C., APRIL 17, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ THE UNION'S EXCEPTIONS FILED TO BOTH THE ARBITRATOR'S AWARD
DENYING THE GRIEVANCE AS WELL AS TO HIS DENIAL OF THE MOTION TO REOPEN
WILL BE TREATED AS ONE APPEAL FOR PURPOSES OF THIS DECISION. THE
AGENCY'S OPPOSITION TO EACH WILL BE SIMILARLY TREATED.
/2/ 5 U.S.C. 7122(A) PROVIDES:
(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION
TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A
MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT
THE AWARD IS DEFICIENT--
(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR
(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND
MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
APPLICABLE LAWS, RULES, OR
REGULATIONS.
/3/ ALTHOUGH THE UNION'S EXCEPTIONS WERE FILED AT THE TIME THE
AUTHORITY'S TRANSITION RULES AND REGULATIONS WERE IN EFFECT, NO HARDSHIP
OR INJUSTICE TO THE UNION RESULTS FROM CONSIDERATION OF THIS CASE UNDER
THE AUTHORITY'S FINAL RULES AND REGULATIONS, 5 CFR PART 2425 (1980), AND
THEREFORE THE FINAL RULES AND REGULATIONS WILL BE APPLIED.
/4/ BECAUSE OF THE POSTURE OF THIS CASE BEFORE THE AUTHORITY, THE
TERM "PETITIONER" WILL BE USED TO AVOID CONFUSION IN THE DISCUSSION OF
THE FIRST EXCEPTION. THE EXCEPTIONS IN THIS CASE HAVE BEEN FILED WITH
THE AUTHORITY ON BEHALF OF THE UNION, SEIU LOCAL 556, BY A PRIVATE
ATTORNEY WHO IS BOTH THE "DESIGNATED REPRESENTATIVE" OF THE UNION AND
THE ATTORNEY FOR THE GRIEVANT. THE DESIGNATED REPRESENTATIVE HAS
ADVISED THE AUTHORITY AS FOLLOWS:
AT THE OUTSET, IT IS NECESSARY TO POINT OUT THAT THIS APPEAL
SPECIFIES ERRORS AND
VIOLATIONS BY ALL THREE PARTICIPANTS TO THE ARBITRATION PROCESS: THE
ARBITRATOR, THE AGENCY
AND THE UNION. IT IS PRECISELY BECAUSE SOME OF THE SPECIFICATIONS
HEREIN RELATE TO THE
UNION'S ACTIONS IN PROSECUTING THE UNDERLYING GRIEVANCE AND
ARBITRATION, THAT THE UNDERSIGNED
PRIVATE ATTORNEY WAS RETAINED BY THE GRIEVANT IN THIS CASE . . . TO
REPRESENT HER.
THE UNION IS, THUS, ONLY NOMINALLY THE APPELLANT; IT WOULD BE NAMED
AS AN APPELLEE, BUT FOR
THE REQUIREMENT THAT ONLY THE AGENCY OR THE UNION CAN FILE SUCH AN
APPEAL. THE AGENCY HAS ARGUED THAT THIS IS A SUBTERFUGE TO PERMIT THE
GRIEVANT, WHO ASSERTEDLY HAS NO LEGAL STANDING BEFORE THE AUTHORITY, TO
APPEAL THE ARBITRATOR'S AWARD. HOWEVER, THE PETITIONER HAS BEEN CLEARLY
DESIGNATED AS REPRESENTATIVE OF THE UNION FOR PURPOSES OF THIS APPEAL BY
LETTER FROM THE PRESIDENT OF SEIU LOCAL 556, AND THEREFORE THE MATTER IS
PROPERLY BEFORE THE AUTHORITY. BECAUSE THE FIRST EXCEPTION CONCERNS THE
UNION'S CONDUCT, HOWEVER, SHE DESIGNATED REPRESENTATIVE WHO HAS FILED
THE EXCEPTIONS WILL BE TERMED "THE PETITIONER."
/5/ 386 U.S. 171 (1967).
/6/ 424 U.S. 554 (1976).
/7/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 153 (1978).
/8/ 424 U.S. 554 (1976).
/9/ IN SMART THE COURT HAD TO DETERMINE WHICH STATUTE OF LIMITATIONS
TO APPLY TO A CASE SIMILAR TO HINES WHERE A DISCHARGED EMPLOYEE BROUGHT
AN ACTION SEEKING JUDICIAL REVIEW OF HIS DISCHARGE (WHICH HAD BEEN
UPHELD IN A FINAL AND BINDING ARBITRATION AWARD) BECAUSE HIS UNION HAD
BREACHED ITS DUTY OF FAIR REPRESENTATION. THE EMPLOYER ARGUED THAT THE
ACTION WAS BARRED BY THE EXPIRATION OF THE LIMITATION PERIOD APPLICABLE
TO AN ACTION TO VACATE AN ARBITRATION AWARD. HOWEVER, THE COURT
DETERMINED THAT THIS TYPE OF MATTER IS AN ACTION INDEPENDENT OF THE
GRIEVANCE PROCESS BECAUSE OF ITS FOCUS ON THE PROPRIETY OF THE
DISCIPLINE INVOLVED RATHER THAN ON THE PROPRIETY OF THE ARBITRATION
AWARD INVOLVED. THEREFORE, THE COURT RULED THAT THE LIMITATION PERIOD
FOR A WRONGFUL DISCHARGE CLAIM APPLIED AND NOT THE LIMITATION PERIOD FOR
AN ACTION TO VACATE OR MODIFY AN ARBITRATION AWARD.
/10/ IN REACHING THIS RESULT THE AUTHORITY DOES NOT, OF COURSE PASS
UPON THE QUESTION OF WHETHER AN ALLEGATION OF A BREACH OF THE DUTY OF
FAIR REPRESENTATION CAN OTHERWISE PROPERLY BE RAISED UNDER THE STATUTE.