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44 FLRA No. 75

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

HEADQUARTERS, OKLAHOMA CITY AIR LOGISTICS CENTER

TINKER AIR FORCE BASE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

0-AR-2202

DECISION

April 23, 1992

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 Russell C. Neas 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 contesting an employee's 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. Background and Arbitrator's Award

The grievant received a 5-day suspension for failing to carry out a work assignment and for acting defiantly towards his supervisor. A grievance was filed over the suspension, and when it was not resolved, it was submitted to arbitration.

In the absence of a stipulation by the parties, the Arbitrator framed the issues, as relevant here, as follows:

Was the Agency's 'Notice of Decision to Suspend for Five Days' timely? If not, what shall be the remedy?

Did the Agency have just cause for [the grievant's] suspension? If not, what shall be the remedy?

Award at 10.

First, the Arbitrator determined that the notice of decision to suspend was timely under Article 5, Section 5.07(e) of the parties agreement.⁽¹⁾ In this connection, the Arbitrator found that the notice of decision to suspend was delivered to the grievant on August 3, 1990, 41 calendar days after June 22, 1990, the date on which the grievant orally responded to a notice of proposed suspension. In addition, the Arbitrator found that, contrary to the Union's claim that the notice of decision to suspend was undated, the notice of decision to suspend "contain[ed] a handwritten date" of August 3, 1990. Award at 12.

On the merits, the Arbitrator concluded that the Agency had "sustained its burden of proof by a preponderance of the evidence that [the grievant] was guilty as charged." Id. at 19. According to the Arbitrator, as it was "undisputed" that the grievant had two previous disciplinary suspensions and as each of the two offenses involved in this case had "a range of penalties from Reprimand to Removal[,]" the 5-day suspension was appropriate. Id. at 22. Accordingly, he denied the grievance.

III. Union's First Exception

A. The Union's Position

The Union claims that the award fails to draw its essence from the parties' collective bargaining agreement for two reasons. First, the Union notes that the Arbitrator incorrectly stated that the notice of proposed suspension was issued to the grievant on March 5, 1990. Although the Union acknowledges that the notice of proposed suspension actually was issued on May 16, 1990, the Union asserts that, when measured from the incorrect date stated by the Arbitrator, the time period in which the Agency was required to issue a notice of the decision to suspend expired on May 10, 1990. Therefore, the Union claims that, as the notice of decision to suspend was issued on August 3, 1990, the Arbitrator's determination that such notice of decision to suspend was timely violates "the meaning and intent of the parties['] collective bargaining agreement." Exceptions at 5. The Union claims, in this regard, that the Agency failed to have the grievant date his acknowledgement of receipt of either the notice of proposed suspension or the notice of decision to suspend. According to the Union, this failure violated Air Force Regulation 40-750.

B. Analysis and Conclusions

To demonstrate that an award is deficient because it fails to draw its essence from the parties' collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 40 FLRA 214, 218 (1991) (Tinker Air Force Base).

The Union has not shown that the award is deficient under any of these tests. The Arbitrator determined that, as the notice of decision to suspend was delivered to the grievant on August 3, 1990, 41 calendar days after June 22, 1990, the date the grievant orally responded to a notice of proposed suspension, the Agency did not violate Article 5, Section 5.07(e) of the parties' agreement by failing to issue the notice of decision to suspend within 45 days of the employee's response. In addition, the Arbitrator found that the notice of decision to suspend was dated August 3, 1990. Nothing in the Arbitrator's interpretation of the agreement is irrational, implausible, or in manifest disregard of the agreement. Moreover, nothing in the record demonstrates that the Union's argument regarding the grievant's acknowledgement of the notice of proposed suspension was presented to the Arbitrator or is relevant to resolving this exception. In our view, this exception constitutes mere disagreement with the Arbitrator's findings of fact and conclusion based thereon and does not provide a basis for finding the award deficient. For example, U.S. Department of Commerce, National Technical Information Service and National Federation of Federal Employees, Local 1627, 43 FLRA 1067 (1992) (National Technical Information Service). Accordingly, we will deny the exception.

IV. Union's Second Exception

A. The Union's Position

The Union claims that, by basing his decision to sustain the grievant's suspension on an earlier suspension that was not referenced in the notice of proposed suspension, the Arbitrator "misapplied the meaning and intent of AFR 40-750" and the parties agreement. Exceptions at 14. According to the Union, although Paragraph 19 of AFR 40-750,⁽²⁾ and Article 5, Section 04 of the parties' agreement,⁽³⁾ require that disciplinary actions be based on matters stated in a notice of proposed disciplinary action, the grievant's earlier suspension "was not referenced in the Notice of Proposed Five Day Suspension given to [the grievant] on May 16, 1990." Exceptions at 14.

B. Analysis and Conclusions

The Authority has determined that collective bargaining agreements, rather than agency regulations, govern the disposition of matters to which they both apply. See American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Hill Air Force Base, Utah, 44 FLRA 147, 153 (1992); U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 194 (1990). Consequently, because the pertinent sections of AFR 40-750 and Article 5 of the parties' agreement concern the same matter, the Union's allegation that the award is contrary to agency regulations does not provide a basis for finding the award deficient. However, insofar as the Union claims that the award is inconsistent with the parties' agreement, we will construe the Union's exception as an assertion that the award fails to draw its essence from the agreement.

The Union has not shown that the award is deficient under any of the tests cited in Tinker Air Force Base. Among other things, the Arbitrator found that it was "undisputed" that the grievant had two previous disciplinary suspensions and as each of the two offenses involved in this case had "a range of penalties from Reprimand to Removal[,]" the grievant's 5-day suspension was justified. Award at 22. Nothing in the Arbitrator's interpretation of the agreement is irrational, implausible, or in manifest disregard of the agreement. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's findings of fact and conclusion based thereon and does not provide a basis for finding the award deficient. See, for example, National Technical Information Service. Accordingly, we will deny the Union's second exception.

V. Decision

The Union's exceptions are denied.

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

1. Article 5, Section 5.07(e) of the parties' Master Labor Agreement provides:

Within 45 calendar days following either the employee's response or expiration of the time limits [for the employee's response] whichever comes last, the Employer shall issue a written decision in the matter.

2. Paragraph 19 of AFR 40-750 provides in relevant part:

e. The notice of decision must include:

. . . .

(2) The specific reason(s) for the decision. Only reasons specified in the notice of proposed action are considered in arriving at the decision.

Attachment to Exceptions at 13.

3. Article 5, Section 04 of the parties' agreement states:

The decision to take action must be based on matters stated in the proposed notice.

Exceptions at 14.

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