45:0822(76)AR - - AFGE Local 916 and Air Force, OK City Air Logistics Center, Tinker AFB, OK - - 1992 FLRAdec AR - - v45 p822



[ v45 p822 ]
45:0822(76)AR
The decision of the Authority follows:


45 FLRA No. 76

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

OKLAHOMA CITY AIR LOGISTICS CENTER

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

0-AR-2241

DECISION

August 11, 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 Julius Rezler 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 grievant filed a grievance contesting his reprimand. The Arbitrator denied the grievance.

For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a Material Handler, WG-6907-06. On June 3, 1991, the Agency's Security Police were called to investigate the discovery of weapons in a building located on the base. Having been led to the grievant's locker by a tracing dog, an investigator opened the locker by removing the hinges on one of the locker doors. The investigator found four 12-gauge shotgun shells in the grievant's locker in an open box about 6 inches from the door. Upon completion of his investigation, the investigator issued a final investigation report on July 30, 1991.

The grievant was notified by letter of September 10, 1991, that the Agency proposed to reprimand him for unauthorized possession of the ammunition that was found in his locker. The Agency's proposed decision to reprimand the grievant was based on Air Force Regulation (AFR) 40-750, Item 20 ("Insubordinate defiance of authority, refusal to comply with proper orders, wanton disregard of directives or insolence"). Award at 2. By letter dated October 29, 1991, the Agency affirmed its proposal to reprimand the grievant.

The grievant filed a grievance alleging that his discipline was not for just cause. The grievance was not resolved and was submitted to arbitration. The Arbitrator stated the issue as follows:

Was the [g]rievant reprimanded for just cause? If not, what is the proper remedy?

Id. at 1.

Before the Arbitrator, the Union contended, among other things, that the grievant had no knowledge as to who had put the shells in his locker. The Union asserted that anyone with a screwdriver could have gained access to the grievant's locker by removing the hinges or that someone could have dropped the shells into the locker through an opening. The Union also contended that Item 20 of AFR 40-750 did not apply in this case because the grievant had no knowledge of the cited regulation and, therefore, did not wantonly disregard directives or orders.

The Arbitrator determined that the Agency had established a prima facie case against the grievant "when four shotgun shells were found in [the grievant's] locker." Id. at 2. The Arbitrator found that it was, therefore, "up to the Union to show that said shells were placed in the locker by someone else without [the grievant's] knowledge" and that "someone had the motive to harm" the grievant. Id. Based on the testimony and evidence, the Arbitrator found that the Union had failed to support its contentions in this regard.

Further, as to the Union's contention that the reprimand was improper because the grievant was unaware of the provision in the Agency's regulation which prohibits the unauthorized possession of ammunition on the base, the Arbitrator stated that "[t]here are offenses that are self-evident with or without formal regulations, such as theft, fighting, use of drugs and also, possession of ammunition on the work floor." Id. The Arbitrator, therefore, rejected the Union's contention.

Accordingly, the Arbitrator found that he had "no choice but to uphold the disciplinary action against the [g]rievant." Id. at 3. As his award, the Arbitrator denied the grievance.

III. First Exception

A. Union's Contentions

The Union contends that the award is deficient because, during the hearing, the Arbitrator improperly rejected the Union's claim that the Agency's decision to reprimand the grievant was untimely under the parties' collective bargaining agreement. According to the Union, the reprimand was untimely because the Agency did not comply with the provision of the parties' agreement that requires the Agency to serve notice of a proposed disciplinary action on an employee within 45 days of the completion of an investigation by someone other than the supervisor. In this regard, the Union argues that: (1) the physical aspects of the investigation were completed on July 10, 1991; (2) the report was compiled on July 25, 1991; and (3) the grievant was notified of the proposed reprimand on September 10, 1991. The Union asserts that the Arbitrator's decision rejecting the Union's contention does not draw its essence from the parties' agreement.

B. Analysis and Conclusions

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; (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; (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, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342, 1349 (1991) (Tinker Air Force Base).

The Union has not demonstrated that the award is deficient under any of these tests. The Union has not established that the Arbitrator's award could not, in any rational way, be derived from the parties' agreement or that the Arbitrator's interpretation of the agreement is irrational, unfounded, or implausible. We note that the grievant was notified of the proposed reprimand on September 10, 1991, which is within 45 days of July 30, 1991, the date on which the final investigation report was issued. Consequently, there is no basis on which to conclude that the award fails to draw its essence from the parties' agreement. Rather, we find that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement. Such disagreement provides no basis for finding the award deficient. See, for example, Tinker Air Force Base, 42 FLRA at 1350. Accordingly, we will deny the Union's exception.

IV. Second Exception

A. Union's Contentions

The Union contends that the Arbitrator did not use the appropriate burden of proof in this case. The Union argues that, by requiring the Union to demonstrate that someone put ammunition in the grievant's locker without his knowledge and that someone had a motive to harm the grievant, the Arbitrator placed an improper burden on the Union to prove that the grievant was innocent. According to the Union, "the accusing party must prove that the accused is guilty . . . ." Exceptions at 8.

B. Analysis and Conclusions

We reject the Union's claim that the award is deficient on the basis that the Arbitrator applied an improper burden of proof. Unless a specific burden of proof is required, an arbitrator may establish and apply any burden he or she chooses. See U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Union, Chapter 137, 41 FLRA 394, 398 (1991) (NTEU, Chapter 137). The Union does not demonstrate that the Arbitrator was required to apply any particular standard of proof. The Arbitrator found that the Agency had established a prima facie case against the grievant and he rejected the Union's contentions in defense of the grievant. The Union's exception, therefore, constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusions in reaching his determination to deny the grievance. Accordingly, we will deny the Union's exception.

V. Third Exception

A. Union's Contentions

The Union contends that the award is contrary to Article 7, section 7.06a of the parties' agreement. That provision states, in pertinent part, as follows:

The arbitrator's authority is limited to deciding only the issues considered in the formal grievance. If the parties fail to agree on a joint stipulation of the issue for arbitration, then the parties shall submit a separate stipulation and the arbitrator shall determine the issue or issues to be heard. . . .

Exceptions, Attachment 4 at 9. According to the Union, the Union and the Agency stipulated to the following issue:

Was the written [r]eprimand given to the grievant . . . on September 10, 1991, for just and proper cause and in accordance with the Master Labor Agreement, [l]aw, [r]ule or [r]egulation? If not[,] what shall the remedy be?

Id., Attachment 5. The Union argues that the Arbitrator violated the agreement by deciding an issue other than the one stipulated to by the parties and consequently did not determine whether the Agency had violated the parties' agreement, law, rule, or regulation.

B. Analysis and Conclusions

Where the parties do not agree on a specific issue, an arbitrator may formulate the issue to be decided. See, for example, American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs, Medical Center, Boise, Idaho, 44 FLRA 707, 710 (1992) (Medical Center, Boise). In support of its contention that the parties stipulated to the issue for arbitration, the Union attached to its exceptions an undated and unsigned statement that contains nothing other than the issue to which the parties allegedly stipulated. See Exceptions, Attachment 5.

Even assuming that the parties stipulated to the issue as alleged by the Union, we note that the issue as framed by the Arbitrator in his award is substantially similar to the issue that the Union claims was agreed to by the parties.

We reject the Union's contention that the Arbitrator's formulation of the issue prevented consideration of whether the award violated the parties' agreement, law, rule, or regulation. The Union has not demonstrated that the award is inconsistent with any specific contract provision, applicable law, rule, or regulation. We find, therefore, that the Union's argument constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusions in denying the grievance and, as such, provides no basis for finding the award deficient. See, for example, 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, 212 (1991). Accordingly, we will deny the Union's exception.

VI. Fourth Exception

A. Union's Contentions

The Union contends that the Arbitrator ruled on charges other than those presented by the Agency or the Union and thereby violated the provision of the parties' agreement that limits an arbitrator's authority to deciding only the issue or issues considered in the formal grievance.

The Union asserts that although "[t]he grievant had been charged with 'unauthorized ammunition being found in [his] locker'" and the Agency's Deciding Official had "testified that the grievant was actually charged with '[w]anton disregard of directives[,]'" the award states that the grievant was reprimanded "for possession of unauthorized ammunition found in his locker . . . ." Exceptions at 9. According to the Union, "[t]here is a profound difference in something being found and having possession of it." Id.

B. Analysis and Conclusions

To the extent that the Union contends that the Arbitrator exceeded his authority by deciding issues not considered in the formal grievance, we reject this contention. An arbitrator exceeds his or her authority when, for example, the arbitrator issues an affirmative order that exceeds the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the Union file a grievance for them. U.S. Department of the Treasury, Internal Revenue Service, Internal Revenue Service, Los Angeles District and National Treasury Employees Union, 42 FLRA 252, 259 (1991). In our view, the Union has not demonstrated that the award concerns matters not submitted to arbitration or includes persons not encompassed by the grievance. The Arbitrator responded directly to the issue of the basis for the reprimand and whether the reprimand was for just cause. Therefore, we find that the Arbitrator did not exceed his authority by ruling on issues not submitted in the formal grievance. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1448-49 (1991) (arbitrator did not exceed her authority by ruling on issues that were not submitted where issue decided by arbitrator was directly responsive to the issue as she framed it).

To the extent that the Union contends that the award does not draw its essence from the parties' agreement, we reject this contention as well. As noted in our analysis of the Union's first exception, 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; (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; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. The Union has not demonstrated that the award is deficient under any of these tests. The Union has not established that the award could not, in any rational way, be derived from the parties' agreement or that the Arbitrator's interpretation of the agreement is irrational, unfounded, or implausible. As stated above, the Arbitrator responded directly to the issue of the basis for the reprimand and whether the reprimand was for just cause. Consequently, there is no basis on which to conclude that the award fails to draw its essence from the parties' agreement. Rather, the Union's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement and, as such, provides no basis for finding the award deficient.

Accordingly, we will deny the Union's exception.

VII. Fifth Exception

A. Union's Contentions

The Union contends that the Arbitrator failed to apply the guidelines governing the appropriateness of penalties (Douglas factors) set forth by the Merit Systems Protection Board (MSPB) in Douglas v. Veterans Administration, 5 MSPR 280 (1981). According to the Union, the Agency was required, in accordance with the Douglas factors, to prove that the grievant was aware of the regulation allegedly violated. The Union argues that the award is deficient because the Arbitrator upheld discipline against the grievant for violating a regulation as to which the grievant was not on notice.

B. Analysis and Conclusions

Contrary to the Union's assertions, the Arbitrator was not required to consider the Douglas factors enumerated by the MSPB in deciding the matter before him. We have repeatedly held that arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over actions not covered by 5 U.S.C. °° 4303 and 7512. See, for example, American Federation of Government Employees, Council of Prison Locals, Local 1612 and U.S. Department of Justice, Federal Bureau of Prisons, Medical Center for Federal Pris