10:0436(73)AR - HHS, SSA, Louisville, Kentucky District and NFFE Local 1790 -- 1982 FLRAdec AR



[ v10 p436 ]
10:0436(73)AR
The decision of the Authority follows:


 10 FLRA No. 73
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY
 ADMINISTRATION, LOUISVILLE,
 KENTUCKY DISTRICT
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1790
 Union
 
                                            Case No. O-AR-347
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Rankin M. Gibson filed by the Agency 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 Union filed an
 opposition.
 
    This matter concerned the reprimand of the grievant for certain
 "unprofessional behavior." A grievance was filed protesting the
 reprimand and the grievance was ultimately submitted to arbitration.
 
    The Arbitrator stated the issue to be whether the Activity had just
 cause to reprimand the grievant for her conduct.  In discussing the
 source of the reprimand, the Arbitrator noted that the charge of
 unprofessional behavior derived from the provision of the parties'
 collective bargaining agreement which provides:
 
          Employees and Management shall conduct all relationships with
       courtesy and professionalism.
 
 However, the Arbitrator stated that it was uncertain what the parties
 intended by the term "professionalism." The Arbitrator understood the
 term to involve characteristics of a profession, in particular the
 learned professions of law, theology, and medicine.  The Arbitrator
 noted that the Agency apparently employed professional employees, but
 explained in terms of this case that such employees were expressly
 excluded from the bargaining unit by the parties' collective bargaining
 agreement.  For these reasons the Arbitrator ruled that under the
 parties' collective bargaining agreement, the grievant, a service
 representative and a bargaining unit employee, "shall not be reprimanded
 for 'unprofessional behavior'" and that under the circumstances
 presented the grievant's lack of courtesy was excused.  Accordingly, the
 Arbitrator determined that the reprimand of the grievant was not for
 just cause and ordered the reprimand expunged from Activity records.
 
    In its exceptions the Agency contends that by reason of the
 Arbitrator's determination that under the parties' agreement the
 grievant was not subject to reprimand for unprofessional behavior, the
 award does not draw its essence from the parties' collective bargaining
 agreement and the Arbitrator exceeded his authority.  In support the
 Agency principally argues that the Arbitrator refused to apply a
 provision of the parties' agreement to the bargaining unit employees it
 was negotiated to cover.
 
    However, the Agency's exceptions do not provide a basis for finding
 the award deficient.  The exceptions represent an attempt by the Agency
 to have its own interpretation of the collective bargaining agreement
 substituted for that of the Arbitrator, and consequently these
 exceptions constitute nothing more than disagreement with the
 Arbitrator's interpretation and application of the agreement provision
 before him.  Merely because the Agency or even the Authority may have
 interpreted the agreement differently than the Arbitrator provides no
 basis for finding the award deficient.  As the Authority stated in
 United States Army Missile Materiel Readiness Command (USAMIRCOM) and
 American Federation of Government Employees, Local 1858, AFL-CIO, 2 FLRA
 432 (1980), the question of the interpretation of the collective
 bargaining agreement is a question solely for the arbitrator in that it
 is the arbitrator's construction of the agreement for which the parties
 have bargained.  In order for an award to be found deficient as failing
 to draw its essence from the collective bargaining agreement, it must be
 established that the award is so unfounded in reason and fact and so
 unconnected with the wording and purpose of the collective bargaining
 agreement as to manifest an infidelity to the obligation of the
 arbitrator;  or that the award on its face does not represent a
 plausible interpretation of the agreement;  or that the award cannot in
 any rational way be derived from the agreement or evidences a manifest
 disregard of the agreement.  Id. at 437-38.  This collection of tests,
 and the private sector cases they are derived from, make it clear that
 an arbitrator's award cannot be undermined as not drawing its essence
 from the agreement merely because a party believes that the arbitrator
 misinterpreted the agreement.
 
    In terms of this case, it is clear that the Arbitrator's resolution
 of the dispute directly resulted from his interpretation of the word
 "professionalism" as used in the agreement.  And while we do not
 necessarily agree with that interpretation, it cannot with certainty be
 said that the award 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 Arbitrator's obligation, or that the award does not
 represent a plausible interpretation of the agreement, or that the award
 cannot in any rational way be derived from the agreement or evidences a
 manifest disregard thereof.  Accordingly, no basis is provided for
 finding that this award is deficient as not drawing its essence from the
 agreement.
 
    Similarly, it has not been established that the Arbitrator exceeded
 his authority.  With no joint stipulation of the issue to be arbitrated,
 the Arbitrator framed the issue as whether there was just cause to
 reprimand the grievant for her conduct, and the Arbitrator on the basis
 of his interpretation of the agreement resolved precisely that issue.
 Consequently, no basis is provided in this respect for finding the award
 deficient.  See San Antonio Air Force Logistics Center, Kelly Air Force
 Base, Texas and American Federation of Government Employees, Local 1617,
 7 FLRA No. 84 (1982);  National Border Patrol Council and National
 Immigration and Naturalization Service Council and United States
 Department of Justice, Immigration and Naturalization Service, 3 FLRA
 400 (1980).  Accordingly, the Agency's exceptions are denied.  Issued,
 Washington, D.C., October 29, 1982
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 Leon B. Applewhaite, Member, dissenting:
 
    I fully agree with my fellow members that mere disagreement with the
 interpretation and application of a collective bargaining agreement does
 not provide a basis on which an arbitration award will be found
 deficient under the Statute.  However, as has been consistently
 recognized by the Authority, an arbitrator's award interpreting a
 collective bargaining agreement is legitimate only so long as it draws
 its essence from that agreement.  E.g., Overseas Education Association
 and Office of Dependents Schools, Department of Defense, 4 FLRA No. 17
 (1980).  In terms of this case, I disagree with the Authority's
 determination that the Agency has not established that the Arbitrator's
 award fails to draw its essence from the parties' collective bargaining
 agreement.
 
    As has been noted, the parties in this case expressly provided in
 their collective bargaining agreement that employees and management
 officials would conduct all relationships with professionalism.
 Furthermore, and as was recognized by the Arbitrator, this agreement was
 negotiated to cover bargaining unit employees, such as the grievant, but
 did not cover professional employees.  As also acknowledged by the
 Arbitrator, the grievant was reprimanded specifically for unprofessional
 behavior based on the failure of the grievant to conduct herself with
 professionalism which in the Activity's view was required by the
 parties' collective bargaining agreement.  Nevertheless, the Arbitrator
 found no just cause for the discipline by expressly rejecting
 "unprofessional behavior" as a permissible basis on which to reprimand
 the grievant essentially because, as a service representative and a
 bargaining unit employee, she was not a professional and therefore could
 not justifiably be reprimanded for unprofessional behavior.  By
 rejecting in this manner the reprimand of the grievant for
 unprofessional behavior, the award, in my opinion, fails to draw its
 essence from the parties' collective bargaining agreement by whatever
 test it is judged.  Thus, in my judgment it has been adequately
 demonstrated that this award is so unfounded in reason and fact and so
 unconnected with the wording and purpose of the parties' agreement so as
 to manifest an infidelity to the Arbitrator's obligation in resolving
 this dispute;  that this award on its face does not represent a
 plausible interpretation of the agreement;  and that this award
 evidences a manifest disregard of the agreement and cannot in any
 rational way be derived from the agreement.  Consequently, I am of the
 opinion that the Agency has established that the award is deficient as
 not drawing its essence from the parties' agreement, and accordingly I
 respectfully dissent from the Authority's decision to deny the Agency's
 exceptions.  Issued, Washington, D.C., October 29, 1982
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUT