U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Allenwood, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 (Authority decision, April 27, 1990)

Final FLRA decision. The Authority denied the union's exception and left in place the arbitrator's denial of a grievance over a four-day suspension. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

The Allenwood prison camp suspended the union's chief steward for four days for being inattentive to duty. The union accepted that the conduct occurred but argued that the penalty was too harsh, inconsistent with progressive discipline, and tied to the steward's union work. An arbitrator rejected the grievance after comparing other discipline and finding little evidence of discrimination. The union claimed the arbitrator had excluded evidence about a different employee's conduct. The Authority found no denial of a fair hearing and treated the exception as disagreement with the arbitrator's assessment of the evidence and agreement. It denied the exception.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union's exception denied; four-day suspension remains in place.
• Key point: The union did not show that the arbitrator's handling of comparative discipline evidence deprived it of a fair hearing.

Full text (FLRA public release)

[ v35 p827 ]
35:0827(88)AR

The decision of the Authority follows:

35 FLRA No. 88

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF
JUSTICE

FEDERAL BUREAU OF
PRISONS

FEDERAL PRISON CAMP

ALLENWOOD,
PENNSYLVANIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

COUNCIL OF PRISON
LOCALS

LOCAL 148

(Union)

0-AR-1802

DECISION

April 27, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Thomas J. Ryan. The Arbitrator denied the grievance over the 4-day suspension of the grievant.

The Union filed an exception 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 exception.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient, and we will deny the Union's exception.

II. Background and Arbitrator's Award

The grievant, the Union's chief steward, was suspended for 4 days for being inattentive to duty. The matter was grieved and submitted to arbitration.

Before the Arbitrator, the Union acknowledged that the grievant had been inattentive to duty. The Union asserted, however, that a 4-day suspension was too harsh and was disproportionate to discipline taken by the Agency against other employees. The Union maintained that the suspension violated the parties' collective bargaining agreement because it (1) constituted discrimination against a Union official, and (2) was not consistent with progressive discipline.

The Arbitrator found that the 4-day suspension did not violate the parties' collective bargaining agreement. The Arbitrator compared the suspension to two disciplinary actions involving other employees, and concluded that "variations in penalties assessed do not necessarily mean that the [Agency's] action was improper or discriminate [sic]." Award at 13. The Arbitrator also examined the contractual provision on progressive discipline and concluded that the suspension did not violate that provision. Finally, the Arbitrator noted that "[i]n regard to the charge of discrimination, there was an abundance of rhetoric, but little supported by any factual evidence." Id. Accordingly, the Arbitrator denied the grievance.

III. Union's Exception

The Union asserts that the Arbitrator improperly prevented it from offering evidence at the arbitration hearing concerning the Agency's failure to take disciplinary action against a non-unit employee who, according to the Union, was responsible for a serious violation of the Agency's security rules. The Union maintains that "this evidence was relevant and would have proven that this four (4) day suspension was unduly harsh, and . . . was only levied due to [the grievant's] Union [a]ctivities." Exception at 1.

IV. Analysis and Conclusion

We conclude that the Union has failed to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute.

The Authority will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to hear pertinent and material evidence. See, for example, Warner Robins Air Logistics Center, Department of the Air Force, Warner Robins, Georgia and American Federation of Government Employees, Local No. 987, 24 FLRA 968 (1986). 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, for example, Veterans Administration and VA Medical Center Register Office and American Federation of Government Employees, Local 1509, 34 FLRA 734 (1990).

In our view, the Union has not demonstrated that it was denied a fair hearing in this case. The Arbitrator addressed all of the Union's arguments, including its assertions that the grievant's suspension was disproportionate to the discipline taken against other employees, and concluded that the suspension did not violate the parties' collective bargaining agreement. We conclude that the Union's exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and interpretation and application of the parties' contract. Accordingly, the exception provides no basis for finding the award deficient. See, for example, Department of the Navy Finance Center and Local Union No. 3283, American Federation of Government Employees, 32 FLRA 754 (1988) (exceptions contending, among other things, that arbitrator refused to admit pertinent and material evidence provided no basis for finding the award deficient).

V. Decision

The Union's exception is denied.

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