42:0703(47)AR - - NFFE Local 1781 and Agriculture, Forest Service - - 1991 FLRAdec AR - - v42 p703



[ v42 p703 ]
42:0703(47)AR
The decision of the Authority follows:


42 FLRA No. 47

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1781

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

(Agency)

0-AR-2158

DECISION

September 30, 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 Geraldine M. Randall filed by 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance over the suspension of the grievant for 7 calendar days.

We conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant was a GS-9 law enforcement officer with the Agency. The Agency alleged that the grievant was on oral and written notice that he was expected to attend the first day of law enforcement refresher training in May 1989. When the grievant failed to attend the first day of the training, he was subsequently charged with failing "'to comply with written and/oral instructions'" and was suspended for 7 calendar days. Award at 4. The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration on the stipulated issue of whether the disciplinary action was in accordance with the parties' collective bargaining agreement.

The Arbitrator concluded that the Agency had substantiated its charge. The Arbitrator found that the grievant was given both written and oral instructions to attend the training and that the grievant did not have discretion to decide not to attend. The Arbitrator also concluded that the penalty imposed was reasonable and in conformity with the Agency's table of penalties.

The Arbitrator rejected the Union's assertion that the Agency violated Article 22, Section 2c of the parties' agreement because discipline was not imposed "'within a reasonable time period after the incident in question, or after Management knew or reasonably should have known of the incident.'" Id. at 12 (quoting agreement). The Arbitrator noted that the grievant's suspension was not proposed until August 8, 1989, over 3 months after the occurrence of the offense. However, the Arbitrator found that it was undisputed that the grievant's supervisor did not learn of the full extent of the offense until June and that the grievant's June training assignments and annual leave interfered with the ability to investigate and process the matter. Accordingly, the Arbitrator determined that there were valid explanations for the Agency's failure to act for more than half of the period of delay. Moreover, the Arbitrator found that it was undisputed that the delay did not harm the grievant. For all these reasons, the Arbitrator ruled that under the circumstances, the delay did "not rise to the level of a contract violation." Id.

Finding no reason to set aside the suspension, the Arbitrator ruled that the action was taken in accordance with the parties' collective bargaining agreement.

III. First Exception

A. Positions of the Parties

The Union contends that the award does not draw its essence from the parties' collective bargaining agreement. The Union notes that under Article 22 of the agreement, disciplinary action must be initiated within a reasonable time period after the incident and that the Arbitrator acknowledged the delay by management before proposing the grievant's suspension. The Union asserts that the parties' agreement does not allow for either party not to be held accountable for its failure to follow the provisions of the agreement based on a determination that the violation did not harm any employees. The Union claims that by "mitigat[ing]" management's violation of the agreement, the award fails to draw its essence from the agreement. Exceptions at 1. The Union further claims that the agreement contains no provision for delaying the initiation of discipline in the circumstances of this case and that, therefore, the Arbitrator's refusal to set aside the grievant's suspension is deficient.

The Agency contends that the award does draw its essence from the parties' agreement. The Agency disputes the Union's assertion that the Arbitrator found a violation of the agreement. The Agency argues that, to the contrary, the Arbitrator determined that the delay did not violate the requirement to initiate discipline within a reasonable period of time, as the Arbitrator interpreted and applied the word "reasonable." The Agency further argues that even if there were a technical violation of the agreement, the Arbitrator was entitled to decide what the consequences of any agency violation should be in applying the agreement and that, consequently, her refusal to set aside the discipline is not deficient.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award does not draw its essence from the collective bargaining agreement.

We agree with the Agency that the Union has misstated the Arbitrator's award. Contrary to the contention of the Union, the Arbitrator did not find a violation of Article 22, Section 2c of the agreement. Instead, she determined that "the delay d[id] not rise to the level of a contract violation." Award at 12. Consequently, the Arbitrator did not "mitigate Management's violation of contract provisions," Exceptions at 1, as alleged by the Union, and such allegation provides no basis for finding the award deficient. Furthermore, the Union's assertion that the agreement contains no provision permitting the delay allowed by the Arbitrator fails to establish that the award does not draw its essence from the agreement.

To establish that an award is deficient because it does not 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; (2) 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 obligation of the arbitrator; (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 the Air Force, McClellan Air Force Base, California and International Federation of Professional and Technical Engineers, Local 220, 40 FLRA 968, 971 (1991) (McClellan AFB). These tests and the private sector cases from which they are derived make it clear that an award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. McClellan AFB, 40 FLRA at 971 (citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990)). The interpretation of a collective bargaining agreement is left solely to the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. McClellan AFB, 40 FLRA at 971-72.

In this case, the Arbitrator determined that in the circumstances presented, the delay did not violate Article 22, Section 2c. Nothing in the Arbitrator's interpretation or application of Article 22, Section 2c disregards the agreement or is irrational, unfounded, or implausible. Instead, the Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of Article 22, Section 2c and an attempt to relitigate this issue before the Authority. As such, the exception provides no basis for finding the award deficient, and we will deny the exception. See id.; Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).

IV. Second Exception

A. Positions of the Parties

The Union contends that the award is based on a nonfact. The Union states that the Arbitrator found that the grievant's training assignments and annual leave during June 1989 interfered with the ability to investigate and process the matter and accounted "'for more than half the period of delay.'" Exceptions at 3 (quoting Award at 12). The Union maintains that the grievant did not miss work due to training during June 1989 and that the grievant took only 29 hours of annual leave during June 1989. Therefore, the Union argues that "it is mathematically impossible for 29 hours of leave taken by the employee in June, 1989 to account for 'more than half the [13 week] delay' in initiating the disciplinary action[,]" as found by the Arbitrator. Id. Consequently, the Union asserts that the award is based "on the non-facts of Grievant's absence because of training and annual leave in June, 1989[.]" Id. at 4.

The Agency contends that the Arbitrator's statement was not central to the Arbitrator's decision. The Agency maintains that the central fact underlying the award was that the delay did not harm the grievant and, therefore, was not unreasonable. The Agency asserts that this basis for the Arbitrator's decision was unaffected by the Arbitrator's statements as to what contributed to the delay and that, consequently, the award is not deficient because it is based on a nonfact.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is based on a nonfact.

To establish that an award is deficient because it is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 539 (1991) (Philadelphia Naval Shipyard).

We find that the Union has misconstrued the award. The Arbitrator did not attribute "'more than half the period of delay'" to the grievant's training and annual leave during June 1989. Exceptions at 3 (quoting Award at 12). Before the Arbitrator mentioned the grievant's training and annual leave in June, the Arbitrator specifically acknowledged that it was "undisputed that [the grievant's supervisor] did not learn the full extent of the offence [sic] until June." Award at 12. Thus, contrary to the Union's contention, "'more than half the period of delay'" was attributed to the supervisor's failing to learn the full extent of the offense until June, together with the grievant's training and leave during June that interfered with the supervisor's ability to investigate and process the matter. Accordingly, we find that the Union has failed to establish in its exception that the alleged misstatement is clearly erroneous and its exception provides no basis for finding the award deficient. See U.S. Department of the Army, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 39 FLRA 994, 998 (1991).

Furthermore, even if the Arbitrator's statement were clearly erroneous, the Union fails to establish that the statement was the central fact underlying the award such that the result would have been different but for the misstatement. The Arbitrator, in addition, clearly relied on her finding that it was undisputed that the delay did not harm the grievant in determining that the delay did not violate Article 22, Section 2c of the agreement. Therefore, even if we assume that the Arbitrator erroneously attributed more than half of the period of delay to the grievant, in view of the Arbitrator's reliance on the lack of harm to the grievant, the Union has not demonstrated that the result would have been different. Accordingly, we will deny this exception. See Philadelphia Naval Shipyard, 41 FLRA at 539-40.

V. Third Exception

A. Position of the Parties

The Union contends that the award violates 5 U.S.C. § 7701 and 5 C.F.R. § 1201.56, pertaining to harmful error, and Agency regulations, pertaining to the timeliness of disciplinary actions. The Union states that the Arbitrator applied the harmful-error rule in determining that the Agency's delay in initiating disciplinary action did not violate the agreement or warrant setting aside the grievant's suspension. The Union argues that the harmful-error rule does not apply to a 7-calendar day suspension and that, therefore, the award is contrary to 5 U.S.C. § 7701 and 5 C.F.R. § 1201.56. The Union also argues that disciplinary actions must be timely under Agency regulations and that such regulations do not provide for harmful error. Therefore, the Union asserts that the award is contrary to Agency regulations by failing to set aside the disciplinary action that was delayed over 3 months.

The Agency argues that the Union's contention that the award should be found deficient because the Arbitrator applied the harmful-error rule should be rejected on the basis of the Authority's decision in U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207 (1991) (INS, Honolulu). The Agency states that in that case the Authority held that arbitrators are not precluded from applying the harmful-error rule to short suspensions. With respect to the Union's contention that the award violates Agency regulations, the Agency contends that the Union is merely disagreeing with the Arbitrator's conclusion that the action was brought within a reasonable period of time, which the Agency contends is the same as "timely" within the meaning of Agency regulations. The Agency asserts that in the event that the Agency regulations are viewed to be different than the collective bargaining agreement, the agreement prevails and no basis is provided for finding the award deficient because it is contrary to Agency regulations.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient, as alleged.

We find that the Union provides no basis for finding that the award is contrary to 5 U.S.C. § 7701 and 5 C.F.R. § 1201.56 because the Arbitrator applied the harmful-error rule to a 7-calendar day suspension. We are not persuaded that the Arbitrator applied the harmful-error rule. In our view, the Arbitrator did not find any error that required an analysis of whether the error was harmful. We reiterate that the Arbitrator determined that the delay did not rise to the level of a contract violation. Instead, the Arbitrator considered any harm to the grievant by the delay in initiating disciplinary action in interpreting and applying the terms of the agreement requiring that disciplinary action be initiated "within a reasonable time period." However, even if we assume that the Arbitrator did apply the harmful-error rule, in INS, Honolulu, as noted by the Agency, we held that an arbitrator is not precluded from applying the harmful-error rule as it has been applied by the Merit Systems Protection Board to a grievance over a suspension of 14 days or less. 41 FLRA at 211. Therefore, we would hold, as we held in INS, Honolulu, that the Arbitrator's determination to apply the harmful-error rule to decide whether the alleged violation of the parties' collective bargaining agreement warranted reversing the grievant's suspension would provide no basis for finding the award to be contrary to 5 U.S.C. § 7701 or 5 C.F.R. § 1201.56.

We also find that the Union provides no basis for finding that the award is contrary to Agency regulations. To the extent that the Agency's regulatory requirement that disciplinary actions be "timely" is no different than the agreement's requirement that they be initiated within a reasonable period of time, the Union is again disagreeing with the Arbitrator's findings and conclusions that the delay was not unreasonable in the circumstances presented. As such, the Union's contention provides no basis for finding the award deficient. See National Association of Government Employees, Local R5-66 and U.S. Department of Veterans Affairs Medical Center, Memphis, Tennessee, 40 FLRA 504, 510 (1991) (disagreement with the arbitrator's finding and conclusion not to sustain the grievance because of the alleged delay by the agency in processing the discipline provided no basis for finding the award deficient).

To the extent that Agency regulations have timeliness requirements that differ from Article 22, Section 2c, the Agency regulations do not govern the matter of the delay, and no basis is provided for finding the award contrary to Agency regulations. In U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990), we held that only an arbitration award that conflicts with an agency regulation that governs the matter in dispute will be found deficient. We concluded that provisions of collective bargaining agreements, and not agency regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement provision and the regulatory provision. Thus, in terms of this case, Article 22, Section 2c takes precedence over Agency regulations, and the Arbitrator found no violation of the agreement.

Accordingly, we will deny this exception.

VI. Fourth Exception

A. Positions of the Parties

The Union contends that the award is deficient because the Arbitrator ignored Authority precedent, which holds that provisions such as Article 22, Section 2c are enforceable.

The Agency contends that the award is consistent with Authority precedent. The Agency argues that the Union is merely disagreeing with the Arbitrator's interpretation and application of Article 22, Section 2c.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is contrary to Authority precedent. We find that this exception again constitutes nothing more than disagreement with the Arbitrator's interpretation and application of Article 22, Section 2c of the parties' agreement. The reason the Arbitrator did not enforce the provision to reverse the grievant's suspension is that she found no violation of the provision. Consequently, none of the cases cited by the Union is on point. Instead, Authority precedent in this respect is clear: disagreement with an arbitrator's interpretation and application of the collective bargaining agreement provides no basis for finding an award deficient because it is the arbitrator's construction of the agreement for which the parties have bargained. For example, McClellan AFB, 40 FLRA at 971-72. That the Union or the Authority may have interpreted the provision diffe