44:0283(23)AR - - Air Force, OK Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1992 FLRAdec AR - - v44 p283
[ v44 p283 ]
The decision of the Authority follows:
44 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 10, 1992
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 Royce S. Weisenberger 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 did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance over the Agency's decision to suspend an employee for 5 days for leaving work early and reporting to work late. For the following reasons, 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 received a 5-day suspension for leaving work early, reporting to work late, disrupting the work force, and being disrespectful to his supervisor. A grievance was filed over the suspension and, when the grievance was not resolved, it was submitted to arbitration.
As relevant here, the Arbitrator rejected the Union's arguments that the Agency interfered with the grievant's right to reply to the proposed suspension by failing to obtain the release from regular duties of the grievant's Union representative in order to enable the representative to prepare the reply. The Arbitrator found that the Agency was not obligated under Article 4, section 4.10(h) of the parties' collective bargaining agreement to arrange a meeting between the grievant and the representative to prepare the reply.(*) The Arbitrator also found that the grievant conferred with the Union representative in sufficient time to prepare a reply and that there was "no showing" that the grievant and the representative "were prohibited or even hindered by the [Agency] from so conferring." Award at 8. According to the Arbitrator, the "[Agency] advised the [g]rievant of all his rights in writing . . . includ[ing] what the reply could contain, that the [g]rievant would be given time off to prepare the reply, that the [g]rievant could designate a representative, etc." Id. The Arbitrator concluded that the grievant and his representative "chose not to file a reply." Id.
The Arbitrator also rejected the Union's claim that the grievant's supervisor prevented the grievant from filing a reply to the proposed suspension. The Arbitrator found that, "there were no actions by the supervisor that prejudiced the [g]rievant's and the representative's time or ability to reply . . . ." Id. at 9.
On the merits, the Arbitrator noted that "[t]he Union concede[d]" that the grievant had "left work early on his own initiative without permission of any supervisor." Id. The Arbitrator also noted that "this was the second time in less than two years that the [g]rievant was disciplined for leaving the job without permission and that the grievant had "a recent history of repeatedly reporting late to work[.]" Id. at 10. The Arbitrator concluded that there was just cause for the 5-day suspension "based upon second offense leaving work without permission and the [g]rievant's poor late to work record[.]" Id. Accordingly, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union contends that the award is inconsistent with law, rule and regulation and that the Arbitrator exceeded his authority.
According to the Union, the Agency's "refusing [the grievant] representation and denying him the right to make any type of reply" to the proposed suspension violated 5 U.S.C. § 2302; 5 U.S.C. § 7503; the Sixth and Fourteenth Amendments to the Constitution; Federal Personnel Manual (FPM), Chapter 752; and Air Force Regulation (AFR) 41-750. Exceptions at 5. The Union also argues that the Arbitrator "misapplied" the parties' collective bargaining agreement by concluding that the Agency was not obligated to arrange for the grievant to meet with his Union representative to prepare a reply to the proposed suspension. Id. at 9.
IV. Analysis and Conclusions
We conclude that the Union has not established that the Arbitrator's award is contrary to law, rule, or regulation.
The Arbitrator concluded, based on the record before him, that the Agency did not interfere in any way with the grievant's rights to consult with his Union representative and to reply to the proposed suspension. According to the Arbitrator, the grievant and his Union representative "chose not to file a reply." Award at 8. In our view, the Union's arguments that the Agency improperly denied the grievant his rights to consult with his representative and to reply to the proposed suspension constitute mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony. As such, these arguments provide no basis for finding the award deficient. For example, U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Council of Prison Locals, Local 2052, 34 FLRA 286 (1990).
We construe the Union's argument that the Arbitrator "misapplied" the parties' agreement as an assertion that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this ground, 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, Office of Hearings and Appeals and American Federation of Government Employees, AFL-CIO, Local 3610, 41 FLRA 504, 509 (1991).
The Union has not shown that the award is deficient under any of these tests. The Arbitrator determined that the Agency did not violate Article 4, Section 4.10(h) of the parties' agreement by failing to arrange for a meeting between the grievant and his Union representative. Nothing in the Arbitrator's interpretation of the agreement is irrational, implausible, or in manifest disre