36:0248(31)AR - - Air Force, Air Logistics Center, Tinker AFB, Oklahoma City, OK and AFGE Local 916 - - 1990 FLRAdec AR - - v36 p248
[ v36 p248 ]
The decision of the Authority follows:
36 FLRA No. 31
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR LOGISTICS CENTER
TINKER AIR FORCE BASE
OKLAHOMA CITY, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 9, 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 John F. Caraway. The Arbitrator denied the grievance over the suspension of the grievant for 14 days.
The Union filed exceptions to the award 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 Activity did not file an opposition to the exceptions.
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 was suspended for 14 days on the following charges: (1) wanton disregard of the settlement agreement of a previous grievance; (2) filing false accusations of sexual harassment; (3) interfering with the production of others; and (4) concealment of material facts in connection with the terms of the grievance settlement. A grievance was filed over the suspension and submitted to arbitration.
The Arbitrator stated the issues to be: (1) whether the Activity violated the parties' collective bargaining agreement by allowing the same person to be the deciding official at both step 2 and step 3 of the negotiated grievance procedure; and (2) whether the Activity had just cause to suspend the grievant for 14 days.
On the first issue, the Arbitrator determined that the Activity did not commit any procedural errors. The Arbitrator found no prohibition in the collective bargaining agreement against the same person serving as the deciding official at both step 2 and step 3 of the grievance procedure. Moreover, the Arbitrator stated that in order to find a procedural error that would require sustaining the grievance, there must be a finding that the grievant has been harmed. The Arbitrator found that the Union offered no evidence to prove that the grievant was harmed by the same person being the deciding official at the two steps of the grievance procedure.
On the merits, the Arbitrator determined that the Activity had just cause to impose a 14-day suspension on the grievant. The Arbitrator determined that the Activity supported all the charges against the grievant. The Arbitrator concluded that an agreement existed in settlement of an earlier grievance of the grievant over a dispute with a co-worker in which the grievant was moved to a different welding booth away from the co-worker and instructed not to have any contacts with her except on official business. He found that the grievant deliberately violated that agreement and concealed material facts concerning the terms of that agreement. The Arbitrator also found that the grievant filed false accusations and interfered with the production of others, as charged. In view of the proven offenses, the Arbitrator determined that the penalty of a 14-day suspension was appropriate.
In finding that the suspension was for just cause, the Arbitrator rejected the Union's defense that it was necessary for the grievant to move back to his old welding booth because he was the precious metals monitor. The Arbitrator also discredited evidence and testimony admitted to attack the credibility of the co-worker with whom the grievant had the dispute.
For these reasons, the Arbitrator denied the grievance.
III. First Exception
a. Union's Contention
The Union contends that in finding no procedural errors, the Arbitrator failed to consider Article 6, Section 6.07, paragraph b(1), which it quotes, as follows: "The designated official in the organization to whom the grievance is referred for resolution must not be the official who took the action or who was involved in an attempt at resolution." The Union argues that this provision supports its claim that the same person is prohibited from serving as the deciding official at both step 2 and step 3. The Union further argues that this procedural error did harm the grievant by depriving him of a third unprejudiced deciding official.
b. Analysis and Conclusion
We view the Union's exception as contending that the award fails to draw its essence from the collective bargaining agreement, and we conclude that the Union fails to establish that the award is deficient on this ground.
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: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). These tests and the private sector cases from which they are derived make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement based on claims that the arbitrator misinterpreted the agreement. Id. at 575-76.
In this case, the Arbitrator determined that "[t]here is no prohibition in the contract against Mr. . . . being the Deciding Official in Steps II and III." Award at 7. Article 6, Section 6.07, paragraph b(1) does not expressly prohibit the same person from being the deciding official at both step 2 and step 3. In our view, the Union's contention concerning the meaning of Article 6, Section 6.07, paragraph b(1) constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement. Such a contention does not establish that the award fails to draw its essence from the collective bargaining agreement under any of the tests recognized by the Authority and provides no basis for finding the award deficient. Id. at 576. Moreover, the Union provides no basis for reversing the Arbitrator's determination that there was no harm to the grievant that warranted sustaining the grievance. Accordingly, we will deny the Union's exception.
IV. Second Exception
a. Union's Contention
The Union contends that the Arbitrator failed to fully consider the facts and denied the grievant due process of law. The Union argues that the Arbitrator did not use all the facts, but only those facts that supported his decision. The Union further argues that the Arbitrator substituted his opinion for the facts. The Union reviews numerous statements and findings by the Arbitrator in his award and alleges that they are misstatements and erroneous findings of fact.
b. Analysis and Conclusion
We conclude that the Union's exception fails to establish that the award is deficient. The Union's exception constitutes nothing more than an attempt to relitigate this case before the Authority and disagreement with the Arbitrator's findings of fact. Such an exception provides no basis for finding an award deficient under the Statute. For example, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 35 FLRA 316, 321 (1990). Furthermore, to the extent that the Union is contending that the award is based on nonfacts, the exception provides no basis for finding the award deficient. We will find an award deficient on this ground when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1112 (1990). In this case, the Union fails to demonstrate that the alleged misstatements and erroneous findings were the central fact underlying the award; that they were clearly erroneous; and that but for the Arbitrator's erroneous findings, the Arbitrator would have reached a different result. See id. Accordingly, we will deny the Union's exception.
V. Third Exception
The Union contends that the award indicates that the Arbitrator was n