45:0102(9)AR - - NAGE Local R4-78 and VA Medical Center, Martinsburg, WV - - 1992 FLRAdec AR - - v45 p102



[ v45 p102 ]
45:0102(9)AR
The decision of the Authority follows:


45 FLRA No. 9

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-78

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

MARTINSBURG, WEST VIRGINIA

(Agency)

0-AR-2249

DECISION

June 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Samuel Spencer Stone 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 a grievance contesting an employee's 14-day suspension. 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 14-day suspension for deliberately failing to follow instructions. A grievance was filed over the suspension and when it was not resolved, it was submitted to arbitration.

The Arbitrator determined that, as there was "no dispute that the grievant [was] guilty of deliberate failure to follow instructions[,]" the only issue before him was whether the grievant received an appropriate penalty. Award at 11. The Arbitrator concluded that the Agency had established by a preponderance of the evidence that the grievant received the appropriate penalty. Among other things, the Arbitrator noted that although two prior suspensions relied on by the Agency were over 3 years old, they were "insubordination related, . . . very serious[,] . . . [and] may be a part of a pattern of misconduct." Id. at 12. The Arbitrator concluded that the Agency had not "arbitrarily or capriciously exercised its discretion" in suspending the grievant for 14 days. Id. at 13. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

The Union contends that the Arbitrator's award is contrary to the parties' collective bargaining agreement, law, rule and regulations. In particular, the Union claims that the Arbitrator erred by failing to find that the Agency's decision to impose a 14-day suspension violated Article 11, Section 3 of the parties' agreement.1/ The Union also claims that the Arbitrator erred by failing to find that the Agency violated Article 12, Section 6 of the agreement2/ by relying on prior disciplinary actions without closely examining their relevance to the present offense. Finally, the Union asserts that the Arbitrator applied an incorrect burden of proof. According to the Union, although the collective bargaining agreement requires the Agency to show by a preponderance of the evidence that its decision to impose discipline is consistent with the parties' agreement, the Arbitrator "viewed the question as being whether or not the Union had shown the [A]gency's action to be arbitrary and capricious." Exceptions at 4.

B. Agency

The Agency contends that the Arbitrator properly found that the disputed suspension did not violate the parties' agreement. The Agency also asserts that it "met the standard of proof required to sustain its action" in suspending the grievant for 14 days, and that "it's action was not arbitrary or capricious." Opposition at 7. The Agency states, in this regard, that the "burden was on the Agency at all times[.]" Id. at 6.

IV. Analysis and Conclusions

We construe the Union's argument that the Arbitrator's award is contrary to the collective bargaining agreement as a contention 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; (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. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 44 FLRA No. 96, slip op. at 3 (1992).

The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Arbitrator concluded, based on his review of the parties' agreement, that the "[e]mployer [did] not arbitrarily or capriciously exercise[] its discretion" in suspending the grievant for 14 days. Award at 13. The Union has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or unconnected to the wording and purpose of the agreement. Instead, we conclude that the exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such disagreement provides no basis for finding the award deficient. See, for example, Id.

We also find that the Union fails to establish that the award is contrary to law, rule, or regulation. The Union has not cited a law or regulation with which the award allegedly conflicts and has not shown that the award violates any law or regulation. In our view, the Union's argument constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement and with his findings and provides no basis for finding the award deficient. See U.S. Department of the Treasury, Customs Service, Houston, Texas and National Treasury Employees Union, 41 FLRA 485, 491-92 (1991).

Finally, we reject the Union's assertion that the Arbitrator improperly required the Union to prove that the Agency's actions were arbitrary and capricious. Nothing in the award establishes that the Arbitrator imposed such burden of proof on the Union. Instead, the Arbitrator specifically concluded that the Agency had satisfied "its contractually required burden of proof . . . ." Award at 14. We conclude that the Union's exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his reasoning and conclusions and is an attempt to relitigate this case before the Authority. The exception does not provide a basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 34 FLRA 315, 318 (1990).

V. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)

1/ Article 11, Section 3 provides that:

It shall be the policy of the Employer to effect discipline only for