46:0683(64)AR - - Navy, Navy Public Works Center, San Diego, CA and NAGE Local R12-35 - - 1992 FLRAdec AR - - v46 p683
[ v46 p683 ]
The decision of the Authority follows:
46 FLRA No. 64
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
SAN DIEGO, CALIFORNIA
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
November 27, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an exception to an award of Arbitrator Samuel A. Vitaro 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 exception.
An employee filed a grievance challenging the Agency's decision to suspend him for 10 days. The Arbitrator sustained the grievance, in part, and denied the grievance, in part. The Arbitrator concluded that a 5-day suspension was an appropriate penalty for the misconduct that the Arbitrator found had occurred.
For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant is employed by the Agency as a Facilities Maintenance Specialist. By notice dated June 14, 1991, the grievant's first line supervisor proposed that the grievant receive a 10-day suspension for "uncooperative, disruptive and disrespectful conduct on the job." Award at 3. The notice of proposed suspension consisted of nine specifications of charges against the grievant and described conduct in which the grievant was alleged to have engaged. Upon review of the proposal, the grievant's second level supervisor found that the specifications were supported and the proposed penalty appropriate. The grievant filed a grievance concerning the proposed suspension. The matter was not resolved and was submitted to arbitration.
The Arbitrator framed the issues before him as follows:
Was the [Agency's] conduct in suspending the [g]rievant justified under the circumstances, and, if so, was a 10-day suspension justified? If not, what is the appropriate remedy?
Id. at 4.
The Arbitrator concluded that six of the nine specifications in the notice of proposed suspension were either unproven by the Agency or did not warrant discipline. Accordingly, the Arbitrator did not sustain those specifications.
The Arbitrator did find, however, that two other specifications and part of a third specification were supported. Specification 1 alleged that the grievant had improperly represented himself as a team leader. The Arbitrator concluded that the grievant had engaged in disrespectful and uncooperative conduct by repeatedly introducing the grievant's team leader to customers as the grievant's electrician, despite repeated instructions that the team leader would perform all introductions to customers. In this regard, the Arbitrator found the team leader and a corroborating witness to be credible and noted that, although the grievant denied that he had committed the conduct alleged, the Arbitrator "did not find the [g]rievant's testimony overall persuasive . . . ." Id. at 5. Indeed the Arbitrator stated that the grievant's testimony "was, at times, simply not believable." Id.
Based upon the testimony of various witnesses, the Arbitrator also discredited the grievant's testimony with regard to Specification 2. That specification alleged that the grievant had used certain inappropriate terms when referring to co-workers. The Arbitrator found that the grievant had referred to a co-worker as, among other things, a "faggot" and had referred to others as idiots and stupid people. The Arbitrator concluded that such conduct was "disruptive and disrespectful." Id. at 6.
With regard to Specification 4, which alleged, among other things, that the grievant had consistently ignored instructions, the Arbitrator found unconvincing the grievant's denials regarding an incident during which he allegedly had refused to change an estimate as instructed. Accordingly, the Arbitrator concluded that the aspect of the specification regarding the grievant's ignoring instructions should be sustained.
The Arbitrator noted that the provision of the parties' collective bargaining agreement that governed the matter before him was Article 8, Disciplinary Actions, Section 8.01, which provides that the Agency "can take discipline against employees in the bargaining unit for 'just cause, determined on the merits of each individual case . . . .'" Id. at 1. Because not all of the specifications were sustained, the Arbitrator considered whether a 10-day suspension would be appropriate for the misconduct that did occur.
The Arbitrator concluded that the grievant had engaged in "extremely serious misconduct" and that this "unacceptable conduct--particularly conduct which is disrespectful of other employees--ha[d] created excessive disharmony and bad feelings within the unit." Id. at 11. The Arbitrator found that the "seriousness of the misconduct and its effect on the efficiency of the unit weigh[ed] in favor of a severe penalty[.]" Id. Although the Arbitrator examined and rejected the grievant's claims that the actions taken against him were discriminatory because they were based upon the grievant's race and were in reprisal for his having raised equal employment opportunity matters, the Arbitrator concluded that there were mitigating factors weighing against a severe penalty. Specifically, in determining the correct penalty the Arbitrator also considered the Agency's failure to support all of the charges against the grievant, a procedural error on the part of the Agency in the initial handling of the proposed suspension, and the grievant's length of service and his work record. Accordingly, "[i]n view of the seriousness of the proven specifications, the effect of the misconduct on the unit morale and relevant mitigating factors," the Arbitrator found that a 5-day suspension was "appropriate and consistent with just cause" and that the grievant was entitled to back pay and other benefits in accordance with the award. Id. at 12.
The Union asserts that the award does not draw its essence from the collective bargaining agreement and that the grievant is entitled to "have all pay and allowances for the suspension reinstated and all references to these matters removed from his personnel file." Exception at 1. The Union argues that there was no just cause for any disciplinary action to be taken against the grievant as required by Article 8, Section 8.01 of the agreement. In support of its contentions, the Union submitted the notice of proposed suspension, the grievant's reply to the notice and a statement from the grievant in support of the Union's exception. In his statement, the grievant takes issue with the Arbitrator's specific conclusions, states that the testimony did not support the specifications that were sustained, denies engaging in any misconduct, and again alleges that the discipline was proposed against him because of his race and because he engaged in activity protected under Title VII of the Civil Rights Act.
IV. Analysis and Conclusions
To demonstrate that an award is deficient because it fails to draw its essence from the 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 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, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federat