39:1282(113)AR - - Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1991 FLRAdec AR - - v39 p1282

[ v39 p1282 ]
The decision of the Authority follows:

39 FLRA No. 113












March 20, 1991

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 Norman Brand 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 to the Agency's exceptions.

The Arbitrator concluded that the Agency's 14-day suspension of the grievant was not taken for just cause and in accordance with established procedures. The Arbitrator reduced the suspension to 1 day and ordered that, in accordance with the Back Pay Act, the grievant be made whole for the additional suspension he served.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Consequently, we will deny the exceptions.

II. Background

In 1984, the grievant was convicted of Driving Under the Influence (DUI). On November 23, 1988, the grievant was again arrested for DUI. On December 21, 1988, the grievant told his second-line supervisor that he had been cited for DUI and would have to go to jail for 3 days. On December 23, 1988, the grievant was convicted of DUI and his license was revoked for 1 year. The grievant's immediate supervisor prepared a memo on January 13, 1989, noting that about 50% of the grievant's work required a valid driver's license and could not be acceptably performed without one.

After serving a 3-day jail sentence in January 1989, the grievant returned to work. Upon his return to work, he told his immediate supervisor that his license had been revoked for 1 year. On January 18, 1989, the grievant's immediate supervisor detailed the grievant to a different position for 4 months "or until his license [was] reinstated." Award at 4. Subsequently, the grievant's immediate supervisor returned to bargaining unit work and the grievant came under the supervision of an individual named Duersch.

In late April 1989, shortly before the end of the detail, Duersch asked the grievant about the status of his license. The grievant told Duersch that he had to take an expensive course before he could get his license back. Duersch arranged for him to take the course for free on the base. Duersch told the grievant that if he did not have his license, his detail would have to be extended. The grievant refused to accept a detail. As a result of this refusal, on June 6, 1989, Duersch gave the grievant an "out of cycle 'Unacceptable' performance rating." Id. at 5. The basis for the "unacceptable" rating was the fact that the grievant did not have a driver's license and was not going to extend his detail and, therefore, could not perform his job duties that required driving a vehicle.

The next day, the grievant and his union representative met with Duersch to discuss the performance appraisal. After some discussion, the union representative indicated that the grievant would accept a detail. Duersch stated that he could not tell whether another detail would be offered.

In the interim, on May 26, 1989 the grievant had left his duties for 1 and 1/4 hours. Duersch charged him with AWOL and proposed reprimanding him. On June 14, 1989, Duersch attempted to give the grievant the proposed letter of reprimand but the grievant refused to sign for his copies. When Duersch informed him that his detail would not be extended, the grievant threatened Duersch. Duersch reported this threat to his superiors and, on July 5, 1989, amended the proposed reprimand to a 1-day suspension based on the threatening remark.

Duersch called the state division of drivers' licenses to find out why the grievant's license had not been reinstated after he had taken the required course. He was informed that the grievant's license had been revoked for a 1-year period. Thereafter, the Security Police obtained a copy of the grievant's conviction record and the license revocation letters. The grievant's base driving privileges were suspended, and he was issued another amendment to the July 5 amended discipline, proposing that the grievant be removed from his position based on off-duty misconduct that rendered him unable to perform his job responsibilities.

The disciplinary proposal was timely grieved and the removal decision was initially sustained. Thereafter, the grievant was given a job that did not require a driver's license and the removal was reduced to a 14-day suspension, which was served in November 1989. The issue of the propriety of the suspension was submitted to arbitration.

III. Arbitrator's Award

The parties stipulated the issue as follows: "Was the 14 day suspension of [the grievant] taken for just cause and in accordance with established procedures? If not what is the remedy?" Arbitrator's Award at 3.

The Arbitrator stated that "Section 5.02 of the contract requires the Agency to propose disciplinary action within 45 days of knowing of the offense upon which the discipline is based." Id. at 8 (footnote omitted). The Arbitrator concluded that the Agency knew that the grievant's license had been revoked for a year by June 7, 1989, at the latest, more than 45 days before its proposal to remove him. The Arbitrator discussed the testimony of the witnesses and determined that the only conclusion consistent with the evidence was that Duersch, and, therefore, the Agency, knew by June 7, 1989, that the grievant had lost his license for a year.

Having found that the Agency knew of the 1-year revocation of grievant's license by June 7, 1989, the Arbitrator concluded that the Agency violated Section 5.02 of the contract when it disciplined the grievant for off-duty misconduct more than 45 days later. Therefore, the Arbitrator concluded that the charges included in the amendment to the July 5 proposed discipline cannot be part of the just cause for a 14-day suspension. The Arbitrator found that the other charges justified only the 1-day suspension originally proposed by the Agency.

As his award, the Arbitrator concluded that the 14-day suspension of the grievant was not taken for just cause and in accordance with established procedures. The Arbitrator found that there was just cause for a 1-day suspension of the grievant that was based on the grievant's reprimand and AWOL. The Arbitrator ordered that the grievant's 14-day suspension be reduced to 1 day and that the grievant be made whole for the additional suspension he served, in accordance with the Back Pay Act. Id.

IV. Positions of the Parties

A. The Agency

The Agency argues that the Arbitrator erred in his discussion of the issue by looking only to facts and evidence that would establish when the Agency first learned of the 1-year revocation of the employee's license. The Agency argues that the Arbitrator failed to consider the provisions of Section 5.02 taken as a whole. The Agency states that Section 5.02 provides that discipline shall be taken "within 45 calendar days of the offense, the employer's awareness of the offense, or the completion of an investigation of the matter by other than the supervisor, whichever occurs later[.]" Exceptions at 2 (emphasis in original).

The Agency argues that the Arbitrator "totally ignores the fact" that an investigation was conducted after the Agency became aware of the offense. Id. The Agency concludes that because the Arbitrator overlooked the investigation, he erroneously calculated the 45 days from the date he determined the Agency became aware of the offense and not from the date of the completion of the investigation. Id. at 4. The Agency requests that the Arbitrator's decision be set aside and the original 14-day suspension be reinstated. Id.

B. The Union

The Union opposes the Agency's exceptions as "nothing more than disagreement with the [A]rbitrator's findings of fact, reasoning, and conclusions." Opposition at 1. The Union claims that the Agency is seeking to relitigate an issue that it lost before the Arbitrator, and that there is no showing that the award is based on a nonfact. The Union requests that the Agency's exceptions be denied.

V. Analysis and Conclusions

We conclude that the Agency has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Agency has failed to establish that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

We view the Agency's exception as a contention that the award fails to draw its essence from the parties' collective bargaining agreement because the Arbitrator did not consider all of Section 5.02 of the contract. For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate 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 the 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. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hi