34:0331(63)AR - - Air Force, Air Force Logistics Command, Hill AFB, UT and AFGE Local 1592 - - 1990 FLRAdec AR - - v34 p331
[ v34 p331 ]
The decision of the Authority follows:
34 FLRA NO. 63
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 18, 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 Albert Schneider filed by the American Federation of Government Employees, Local 1592 (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 U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah (the Agency) filed an opposition to the Union's exceptions.
The grievant was suspended for 5 days for "wanton disregard" of the Agency's directives and instructions. Award at 12. The Arbitrator found that the Agency's suspension of the grievant was reasonable and for just cause and denied the grievance. The Union excepts to the Arbitrator's award, contending that the Arbitrator did not understand the facts and testimony, the parties' master labor agreement and the Agency's regulations. The Union also contends that the discipline was not for just cause.
For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is a tool crib attendant at the Hill Air Force Base. He is responsible for properly marking tools for identification and issuing tools from the Agency's "tool room." Award at 5-6. On several occasions, the grievant was "put on notice" and counseled concerning his failure to properly mark tools before issuing them from the tool room. Id. The grievant also was suspended for 1 day "for disregarding directives (tool room)." Id. at 6.
About a month after the Agency suspended the grievant for 1 day, the grievant's supervisor discovered that the grievant had issued 25 screwdrivers without the proper markings for identification. When questioned about the screwdrivers, the grievant admitted that he had issued them and that they were unmarked. Id. The supervisor issued a letter informing the grievant that he had issued tools contrary to the Agency's directives and proposed a 5-day suspension. The grievant filed a grievance regarding the proposed suspension.
The matter was submitted to arbitration. The parties were unable to stipulate the issue before the Arbitrator. Therefore, the parties were permitted to submit their respective views of the issues. The Arbitrator stated that in accordance with the parties' agreement, he would "consider only the issues which were referred to and considered in the formal grievance." Id. at 3.
The Union contended that the discipline of the grievant was not for just cause. The Union argued that the Agency violated the parties' agreement and the Agency's regulations by: (1) conducting an improper investigation of the incident leading to the proposed 5-day suspension of the grievant; (2) giving incorrect information about processing the grievance; (3) failing to remove records concerning previous counseling from the grievant's personnel file; (4) failing to give the rationale for its decision to suspend the grievant; (5) disciplining the grievant twice for the same offense; and (6) not exchanging a witness list within the time required under the agreement. The Union also contended that the Agency violated 5 U.S.C. 4303 and Air Force regulations by disciplining the grievant.
The Arbitrator found that the Agency committed "a technical violation of the contract" by failing to remove the record of a previous counseling from the grievant's personnel file. Id. at 8. The Arbitrator concluded that no remedial order was necessary because the Union "failed to demonstrate that the retention of one retained counseling document in the file was prejudicial to grievant." Id. The Arbitrator found that the Union's remaining contentions that the Agency violated the parties' agreement and Agency regulations lacked merit. Id. at 6-11. The Arbitrator also found that 5 U.S.C. 4303 does not apply to the disciplinary suspension of the grievant because the grievant "was not given an appraisal for overall performance, nor was he reduced in grade or removed from his job." Id. at 10.
The Arbitrator concluded that the Agency had shown just cause under the parties' agreement for "imposing a five day suspension on grievant for failure to number twenty-five screw drivers." Id. at 14. The Arbitrator relied on the following factors in making this determination:
Grievant's admission he failed to mark tools as required by instructions and regulations; grievant's admission that he failed to ask for required tool numbers from requestor supervisor; that grievant was instructed and counseled a number of times by his immediate supervisor about the necessity of numbering tools before issuance; that grievant was suspended for one day . . . one month prior to the latest incident for not marking tools properly before issuance; that Employer's suspension of grievant was reasonable within the Douglas Factors developed by the Merit System(s) Protection Board.
Id. at 14-15. The Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union
The Union contends that "the Arbitrator missed most of the relevant facts and testimony at the hearing and doesn't understand regulation's (sic) or the written word of the contract." Exceptions at 16. The Union maintains that the term "just cause" in the parties' contract "is construed to require (the Agency) to prove the employee guilty of the charged misconduct . . . and that the penalty is not arbitrary, capricious, discriminatory or unreasonable." Id. The Union argues that the Agency "failed to prove the offense of 'Wanton disregard of directives (tool control)' and that the grievant 'failed to properly mark identification numbers on them' (meaning tools) 'prior to issuing' them by the preponderance of the evidence and the 'just cause' requirement of the contract." Id. at 1. The Union states that it "does not agree what was done by grievant was in error." Id. at 6. The Union contends that the "discipline (of the grievant) is not for just cause and the grievant should be made whole, and all records of this suspension expunged from his records(.)" Id. (emphasis in original).
B. The Agency
The Agency contends that the Union's exceptions are without merit. The Agency states that the exceptions are "inappropriate because they were not part of the grievance" and "are not sufficient to change the (A)rbitrator's decision." Opposition at 8.
The Statute sets forth the grounds on which an arbitration award will be found deficient. Under section 7122(a), an award will be found deficient: (1) because it is contrary to law, rule, or regulation; or (2) on other grounds similar to those applied by the Federal courts in private sector labor relations cases.
The Union does not contend that the award is contrary