American Federation of Government Employees, Local 1406 and U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California (Authority decision, April 30, 1998)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

The Air Force suspended a union representative for seven days after a confrontation with a supervisor. An arbitrator found misconduct but reduced the suspension to three days because the deciding official had relied in part on a separate confrontation omitted from the proposed suspension notice. The union sought to set aside all discipline and challenged the fairness and factual basis of the award. The Authority dismissed one unsupported exception and denied the rest. It held that the notice problem did not require vacating a suspension supported by the charged misconduct.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); suspension notice rules under § 7503 and 5 C.F.R. § 752.203.
• Outcome: Union’s case-law exception dismissed; remaining exceptions denied; three-day suspension left in place.
• Key point: A notice defect concerning part of a penalty does not automatically void discipline supported by the noticed conduct.

Full text (FLRA public release)

[ v54 p150 ]
54:0150(19)AR

The decision of the Authority follows:

54 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1406

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE FLIGHT TEST CENTER

EDWARDS AIR FORCE BASE, CALIFORNIA

(Agency)

0-AR-3012

_____

DECISION

April 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Gerry L. Fellman 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator mitigated the grievant's suspension from 7 days to 3 days. For the reasons set forth below, we conclude that one of the Union's exceptions fails to meet the Authority's requirements for exceptions and that the remaining exceptions fail to establish that the award is deficient. Accordingly, we dismiss the deficient exception and deny the remaining exceptions.

II. Background and Arbitrator's Award

The grievant, a union representative, was suspended for 7 days for using offensive and abusive language toward a supervisor and inciting a quarrel with that supervisor. The Arbitrator found that the grievant had acted as described in the proposed suspension and that discipline was warranted.

He rejected the Union's claim that discipline was inappropriate based on the Authority's decision in Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA 7 (1995). Evaluating the factors listed in that case, the Arbitrator ruled that the Agency had just cause to suspend the grievant.

Having found that the Agency established the misconduct alleged, the Arbitrator mitigated the suspension to 3 days because "an important factor" in the deciding official's decision to suspend the grievant for 7 days was a confrontation the official had with the grievant on the same day as the charged misconduct. Award at 22. The Arbitrator concluded that the grievant's suspension was "to some extent arbitrary" and violated 5 U.S.C. § 7503 and 5 C.F.R. § 752.203, because that confrontation was not mentioned in the notice of proposed suspension.(1)

Id.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award is deficient on several grounds.

First, the Union contends that the award is "inconsistent with Federal Labor Relations Authority case law[.]" Exceptions at 1. The Union argues that the Arbitrator "failed to distinguish between [the grievant's] rights as a Union Representative (to engage in robust discussion) and his rights as an employee." Id. at 3.

Second, the Union argues that because the Arbitrator found that the grievant's suspension violated 5 U.S.C. § 7503 and 5 C.F.R. § 752.203, the discipline was "tainted" and the Arbitrator could not sustain any discipline. The Union argues that the Authority should apply the "Fruit of a Poisonous Tree Doctrine." Id.

Third, the Union contends that the Arbitrator was biased and denied it a fair hearing. The Union asserts that throughout the hearing, the Arbitrator accepted and relied on hearsay evidence from the Agency, but refused to accept hearsay evidence from the Union. The Union also claims that the Arbitrator refused to allow the Union to introduce evidence of a pattern of union animus.

Fourth, the Union contends that the Arbitrator "ordered discipline for a fact that was not proven (i.e., offensive and abusive language) and for a fact not in contention (Failure to Comply with a Lawful Order.)[.]" Id. at 1. The Union argues that the Arbitrator improperly relied on the concept of "obey now and grieve later." The Union asserts that the grievant was not charged with refusing to follow an order and that the Arbitrator improperly sustained discipline on that basis.

B. Agency's Opposition

The Agency contends that the Union's argument that the award is contrary to Authority case law is deficient and should be dismissed. The Agency argues that the Union fails to cite any Authority case law or any rule of law in support of its exception. The Agency asserts that the Union's lack of specificity does not meet the requirements of section 2425.2 of the Authority's Regulations and that this defect prevents it from making a meaningful response.

The Agency also contends that the Arbitrator's finding that it violated 5 U.S.C. § 7503 and 5 C.F.R. § 752.203 did not require that he overturn the entire suspension. The Agency argues that the award mitigating the suspension is not deficient because the Arbitrator specifically found that, apart from the incident between the grievant and the deciding official, the Agency was warranted in suspending the grievant for the charged misconduct.

The Agency further contends that the Arbitrator provided the Union with a fair hearing. The Agency argues that the Arbitrator accepted hearsay evidence from both parties and that the Union is merely disputing the weight that the Arbitrator accorded that evidence. Finally, the Agency contends that the remaining exceptions provide no basis for finding the award deficient.

IV. Analysis and Conclusions

A. The Union Did Not Provide Support for Its Claim That the Award Is Contrary to Authority Case Law

Section 2425.2 of the Authority's Regulations provides that, "[a]n exception must be a dated self-contained document which sets forth in full: . .
. (b) Evidence or rulings bearing on the issues before the Authority; (c) Arguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities . . . ." The Union contends that the award is contrary to Authority case law. However, it cites no Authority case law.(2) Further, the Union fails to provide any specific reference to pertinent documents or citations of authority.

As such, the Union's exception fails to satisfy the requirements of section 2425.2 of the Authority's Regulations and must be dismissed. See San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local Union 1617, 7 FLRA 11 (1981).

B. The Award Is Not Contrary to 5 U.S.C. § 7503 or 5 C.F.R. § 752.203

The Union asserts that the Arbitrator improperly applied section 7503 and section 752.203 when he mitigated, rather than overturned, the suspension. Exceptions at 3. Where a party's exceptions involve an award's consistency with law, the Authority must review the questions of law raised by the Arbitrator's award and the parties' exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

The Union fails to establish that, having found a violation of these provisions, the Arbitrator was required to fully vacate the suspension. The Union cites no precedent for its assertion. With respect to the Union's assertion that the Authority should apply the "Fruit of a Poisonous Tree Doctrine," the Union has offered no reason, and none is apparent, why this doctrine applies. There is no practice of directly applying rules of criminal procedure in civil matters in general, or in arbitration proceedings in particular. See, e.g., LaChance v. Erickson, 118 S. Ct. 753, 756 (1998) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (discussing the "prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions")); Chisolm v. U.S. Postal Service, 7 MSPR 116, 120 (1981) (the Miranda right to counsel emanating from the Fifth Amendment does not apply to civil investigations that will not result in criminal prosecutions). Thus, we conclude that the doctrine does not apply to this situation.

Further, in mitigating the suspension, the Arbitrator upheld a penalty appropriate for the misconduct that he found was both factually established and procedurally sound under sections 7503 and 752.203. Thus, no reason is apparent that the Arbitrator's mitigation is inconsistent with those sections.

Accordingly, we deny this exception.

C. The Union Has Not Established That the Arbitrator Denied It a Fair Hearing or Was Biased

An arbitrator fails to conduct a fair hearing by refusing to consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). To demonstrate bias on the part of an arbitrator, the appealing party must show that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that there was misconduct by the arbitrator that prejudiced a party's rights. See Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18, 19 (1981).

In support of its arguments that it was denied a fair hearing and that the Arbitrator was biased, the Union claims only that the Arbitrator accepted hearsay evidence from the Agency, but not the Union, and that he refused to allow evidence to show a pattern of union animus. There is no support in the award or elsewhere for these claims. In particular, the Arbitrator does not mention in the award any refusal to admit evidence, no hearing transcript or other support is supplied by the Union, and no excluded evidence is specifically referred to.

The Union's unsubstantiated allegations cannot establish that the Arbitrator was biased or denied it a fair hearing. See International Association of Machinists and Aerospace Workers, Local 2333 and U.S. Department of the Air Force, 88th Air Base Wing, Wright-Patterson Air Force Base, Ohio, 53 FLRA No. 141 (1998). Accordingly, we deny these exceptions.

D. The Union Has Not Established That the Award Is Based on a Nonfact

The Union contends that the award is deficient because the Arbitrator "ordered discipline for a fact that was not proven (i.e., offensive and abusive language) . . . ." Exceptions at 1. We construe this argument as a contention that the award is based on a nonfact. The Authority will not find an award based on a nonfact on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 594 (1993). It is clear that the parties disputed before the Arbitrator whether the grievant used offensive and abusive language.

The Union further contends that the Arbitrator relied on "a fact not in contention (Failure to Comply with a Lawful Order)[.]" Exceptions at 1. The Union asserts in this regard that the Arbitrator improperly relied on the concept of "obey now and grieve later," which, according to the Union, necessarily relates only to a charge of failure to comply with a lawful order. It is clear from the award that the Arbitrator did not sustain any discipline for the grievant's failure to comply with an order. Rather, the Arbitrator referred to the concept of "obey now and grieve later" solely as an analogy in describing the grievant's misconduct.

As these arguments provide no basis for finding the award deficient, we deny this exception.

V. Decision

The Union's exception contending that the award is contrary to case law is dismissed. The Union's remaining exceptions are denied.

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

1. Section 7503 pertinently
   provides:

(b) An employee against whom a suspension for 14 days or less is proposed is entitled to--

(1) an advance written notice stating the specific reasons for the proposed action[.]

Section 752.203(e) pertinently provides:

(e) Agency decision. In arriving at its written decision, the agency shall consider only the reasons specified in the notice of proposed action . . . .

2. The Union's only statement
   supporting this exception is that the Arbitrator "failed to distinguish between
   [the grievant's] rights as a Union Representative (to engage in robust discussion) and his rights as an employee." Exceptions at 3. This ground for objection does not provide any argument or authority that could form a basis for finding the award deficient.