42:0322(25)AR - - Navy, Naval Aviation Depot, Norfolk, Virginia and IAM Local 39 - - 1991 FLRAdec AR - - v42 p322

[ v42 p322 ]
The decision of the Authority follows:

42 FLRA No. 25













September 24, 1991

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 Roy D. Cromwell 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 Union filed a grievance concerning a 4-day suspension of the grievant for unexcused tardiness and failure to follow the instructions of a supervisor. The Arbitrator reduced the discipline to a 1-day suspension. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, an aircraft mechanic who had been "tardy a number of times," was instructed by his supervisor to use a particular time clock to record his attendance. Award at 2. Subsequently, the grievant used a different time clock, in a different building, to record his arrival at work. The grievant, who arrived at his worksite 10 minutes after the beginning of his tour of duty on that day, was suspended for 4 days for unexcused tardiness and failure to follow supervisory instructions. The Union filed a grievance over the suspension and, when the grievance was not resolved, it was submitted to arbitration. The Arbitrator did not state the issue before him.

The Arbitrator noted various provisions in the parties' collective bargaining agreement, including Article XXIV, section 5, which provides the following:

The employer agrees to impose the minimum penalty that can be reasonably expected to correct an offending employee. When imposing a penalty, consideration will be given to the nature of the offense, timeliness of the disciplinary action, the employee's length of service, past record, nature of position, and any extenuating or mitigating circumstances.

Id. at 1. The Arbitrator also noted the Agency's instruction on employee discipline (NARFINST 12751.1), which provides:

It is the policy of this Facility to utilize disciplinary procedures . . . in a constructive and progressive manner for maintaining discipline and counseling of employees for infractions shall be considered when deemed warranted in lieu of or concurrent with the initiation of disciplinary action . . . .

Id. at 2.

The Arbitrator found that: (1) the grievant "had received direct orders about where to clock in and out[]" and (2) the grievant "had problems in following those orders and did not follow them" on the day in question. Id. at 3. The Arbitrator noted that the tardiness resulted from his efforts to ensure that his son attended school. The Arbitrator stated that although "the tardiness was for a good purpose [,] . . . continued tardiness no matter the reason therefor ha[d] to be dealt with." Id. at 3-4.

With respect to the penalty imposed on the grievant, the Arbitrator noted the range of penalties for various offenses set forth in the Agency's regulatory guidelines. The Arbitrator concluded as follows:

Your arbitrator believes that some written warning with a copy to the Union is an ingredient to progressive discipline called for in tardiness cases. Such was not given. The offense of disobedience and insubordination is different and a much more serious offense than absenteeism, and requires immediate discipline. Therefore, a written warning should have been given for the absentee problem and a reprimand to removal for the insubordination. The penalty given by the employer was within those guidelines. Grievant was obviously trying to have the record not show he was arriving late. He took the chance of clocking in at a clock other than the one he had been ordered to use and got caught. He must pay the penalty assessed as your arbitrator finds just cause and fairness under the circumstances.

Id. at 4. As his award, the Arbitrator reduced the 4-day suspension to 1 day.

III. Positions of the Parties

A. The Agency

The Agency asserts that the Arbitrator's award does not draw its essence from the collective bargaining agreement and is inconsistent with law.

The Agency argues first that the award "manifests a disregard for the collective bargaining agreement between the parties." Exceptions at 3. The Agency states although the Arbitrator's reason for reducing the suspension "is far from clear[,]" the award "is totally unconnected with the collective bargaining agreement, which contains no requirement that an employee be given a written warning in tardiness cases." Id. at 5. According to the Agency, the Arbitrator's findings that the Agency's action was for just cause and that the 4-day suspension was within the Agency's regulatory guidelines render his subsequent mitigation of the suspension "essentially lawless." Id. at 6. The Agency also argues that the award in this case is distinguishable from awards upheld by the Authority because, in the Agency's view, the Arbitrator "expressly found that all of the disciplinary penalty was for just cause and, yet . . . still reduced the penalty." Id. at 7.

The Agency also argues that the award is deficient because it is inconsistent with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency asserts that arbitrators may, consistent with the Supreme Court's decision in Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS), "disturb agency management's decisions involving rights reserved to agencies under section 7106(a)(2) [of the Statute] if they are enforcing limitations on the exercise of those rights imposed by 'applicable law.'" Exceptions at 8 (citation omitted). Although the Agency acknowledges that awards enforcing such contractual standards as "just cause," "good cause," or "for the efficiency of the service" at "least arguably enforce civil service law," the Agency maintains that the award in dispute here does not. Id. at 8-9.

The Agency also argues, in this regard, that the Authority's decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service) does not apply here. According to the Agency, "[s]ince the award does not interpret a provision of the collective bargaining agreement, it cannot be viewed as enforcing an 'appropriate arrangement' under section 7106(b)(3) of the Statute." Id. at 9-10.

B. The Union

As an initial matter, the Union argues that the Agency's exceptions should be dismissed as untimely because they were filed more than 30 days after the award was served on the Agency.

As to the merits of the Agency's exceptions, the Union asserts that the Agency "is attempting to reargue this case before the Authority." Opposition at 1. According to the Union, the Arbitrator specifically was asked to decide whether the penalty imposed on the grievant was reasonable and "to make his ruling considering the mitigating factors and the provisions of Article XXIV[,] Section 5." Id. The Union argues that under that provision, the Arbitrator was authorized to mitigate the grievant's suspension. In the Union's view, the Arbitrator's decision reflects that "he addressed the mitigating factors surrounding the grievant's behavior and considered them in accordance with Article XXIV Section 5." Id. at 2.

IV. Analysis and Conclusions

A. The Agency's Exceptions Were Timely Filed

Under section 2425.1(b) of the Authority's Rules and Regulations, the time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). Absent evidence to the contrary, the date of an arbitration award is presumed to be the date of service. See Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988), reconsideration dismissed, 32 FLRA 663 (1988). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22.

In this case, the Arbitrator's award was dated, and presumed to be served on the parties, on April 2, 1991. The 30-day time period for filing exceptions, therefore, expired on May 1, 1991. Because the award was served by mail, however, 5 days are added to the filing period. Therefore, to be timely, any exceptions to the award had to be filed by the close of business on May 6, 1991. As the Agency's exceptions were filed with the Authority on May 6, 1991, the exceptions were timely filed.

B. The Award Draws Its Essence from the Parties' Collective Bargaining Agreement

To demonstrate that an award fails to draw its essence from an 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 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. For example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 37 FLRA 1144, 1150 (1990).

The Agency has not demonstrated that the Arbitrator's award fails to draw its essence from the agreement under any of the above tests. As noted previously, the parties' agreement provides, among other things, that the Agency will impose "the minimum penalty that can be reasonably expected to correct an offending employee[]" and, in determining such penalty, will consider "extenuating or mitigating circumstances." Award at 1. The Arbitrator's statement that "some written warning . . . [is] called for in tardiness cases[]" and his mitigation of the grievant's penalty are not implausible, irrational, or unconnected with the wording and purposes of the agreement. Id. at 4.

Moreover, we reject the Agency's argument that the Arbitrator mitigated the grievant's suspension despite a finding that the original suspension was appropriate. The Arbitrator specifically stated that "some written warning . . . [was] . . . called for[,]" but "was not given." Id. The Arbitrator stated further that "a written warning should have been given for the absentee problem and a reprimand to removal for the insubordination." Id. Accordingly, consistent with the award as a whole, we reject the Agency's assertion that the Arbitrator "expressly found that all of the disciplinary penalty was for just cause . . . ." Exceptions at 7.

We conclude that this exception is an attempt to relitigate the case before the Authority and constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. Accordingly, the exception provides no basis for finding the award deficient under section 7122(a) of the Statute. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).

C. The Award Is Not Contrary to Law

We reject the Agency's argument that the award is deficient because it impermissibly interferes with the exercise of the Agency's right to discipline employees.

It is well established that an arbitrator properly may determine that all or part of a disciplinary penalty is not for just cause and may set aside or reduce the penalty. For example, Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 336 (1990) (El Reno). Stated simply, an arbitrator's mitigatio