46:1039(94)AR - - GSA, Region 2 and AFGE Local 2431 - - 1992 FLRAdec AR - - v46 p1039
[ v46 p1039 ]
The decision of the Authority follows:
46 FLRA No. 94
FEDERAL LABOR RELATIONS AUTHORITY
GENERAL SERVICES ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
December 31, 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 David M. Kaplan 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 reprimand of the grievant. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
On August 23, 1991, the grievant, a planner and estimator, was officially reprimanded for neglect of duty. The reprimand was based on three specifications. The first specification charged that after the grievant was assigned a landscaping project in July 1990, he did not properly develop and plan the project and that his intention to prepare a "labor-only contract" was inconsistent with normal procurement practices and would have left the Agency in possession of unneeded equipment after the landscaping was completed. Award at 3. The second specification charged that the grievant, by using two purchase orders for landscaping supplies, created a split procurement in violation of procurement regulations. The third specification charged that the grievant combined the purchase of landscaping supplies for two different locations on one purchase form and did not properly identify the supplies or the location for which they were purchased, all of which contributed to the procurement of unnecessary supplies. Prior to his reprimand, while the grievant's actions in July and August 1990 were being investigated, the grievant was transferred to the Agency's Long Island field office on December 30, 1990.
On September 20, 1991, a grievance was filed on behalf of the grievant challenging the grievant's reprimand. As the remedy, the grievance demanded that the reprimand be cancelled and that the grievant be restored to his former duty station. The Agency's assistant regional administrator rescinded specification #2, but sustained the reprimand on the basis of specifications #1 and #3. In sustaining the reprimand, the administrator stated that the request that the grievant be restored to his former duty station was inappropriate as part of the grievance over the reprimand because the grievant's "transfer was not in any way related to the item being grieved (i.e., an official Reprimand) and the time limit to grieve the transfer expired long ago." Step 2 Grievance Decision at 4 (emphasis in original). The grievance was not resolved and was submitted to arbitration.
The Arbitrator stated the issue to be as follows:
Was the grievant . . . issued an Official Reprimand for good and sufficient cause? If not, what shall be the remedy?
Award at 5. The Arbitrator determined on the basis of the evidence and testimony presented that the Agency correctly assessed the grievant's conduct in this matter as a neglect of duty. The Arbitrator further determined that the Agency acted with due regard for the factors enumerated in the parties' collective bargaining agreement that must be considered by management in selecting the appropriate penalty and that the selection of an official reprimand was reasonable under all the facts and circumstances. Accordingly, the Arbitrator denied the grievance. In denying the grievance, the Arbitrator specifically ruled "that the transfer of the grievant is not an issue before this arbitrator[.]" Id. at 8 (emphasis in original). In so ruling, the Arbitrator noted that the grievant "never grieved his transfer, and the 30 day contractual time limitation had expired." Id. at 5 n.2.
III. First Exception
A. Positions of the Parties
1. The Union
The Union contends that the Arbitrator failed to consider the violations by the Agency of the parties' collective bargaining agreement and Agency regulations. The Union argues that the Agency violated the collective bargaining agreement by failing to reprimand the grievant in a timely manner; by failing to provide the full report of the Agency's inspector general to the Union or the Arbitrator; by failing to make available outside the hearing room certain witnesses requested by the Union; by failing to follow the agreement's provision for progressive discipline; by the deciding official's failure to review the grievant's personnel file; and by the Agency's building manager's failure to discuss the matter with the grievant before contacting the inspector general. The Union also argues that the Agency violated the Federal Rules of Evidence and that management officials committed misconduct by failing to provide to the Union or the Arbitrator the full report of the inspector general, who had investigated alleged improprieties in the grievant's procurement of equipment.
The Union further argues that the Agency's procurement rules do not require that all purchases specify a building code number as the Union asserts the Agency's reprimand of the grievant implies. In addition, the Union argues that the Agency's regional administrator violated 5 CFR § 771.302, which pertains to the establishment and administration of an agency grievance system, by his statements at the arbitration hearing that the hearing was not important. The Union also argues that the Agency's reprimand is unfounded because the Federal Acquisition Regulations permit labor-only contracts and the Agency's procurement rules encourage the use of oral quotations whenever possible.
The Union also contends that the award is deficient because the Agency's reprimand fails to specify any law or regulation that the grievant violated and because the reprimand is libelous, as shown by the fact that one of the three specifications was cancelled by the deciding official.
2. The Agency (*)
The Agency construes the Union's contentions that the Arbitrator failed to consider violations by the Agency of the parties' agreement as a contention that the award fails to draw its essence from the collective bargaining agreement. The Agency argues that the Union fails to establish that the award is deficient on this basis. In addition, the Agency argues that to the extent the Union is claiming that the Arbitrator failed to properly explain his award, such a claim provides no basis for finding an award deficient.
More specifically, the Agency argues that the Union's assertions that the Agency violated the agreement by failing to make available outside the hearing room certain witnesses and by failing to provide the full inspector general report provide no basis for finding the award deficient. The Agency maintains that the Union was informed at the arbitration hearing that the witnesses were available to testify and they were awaiting calls in their offices within an hour's travel time to the hearing. The Agency asserts that the Union chose not to call these witnesses and that the fact that the witnesses were not present outside the hearing room is no basis for finding the award deficient. The Agency maintains that the Union's assertion regarding the inspector general's report is erroneous because the agreement clearly states that only sections of an investigative report that are relevant to the disciplinary action must be provided and these sections were provided both to the Union and the Arbitrator.
The Agency claims that the Union's contention that the Agency violated the Federal Rules of Evidence provides no basis to find the award deficient because there is no requirement that arbitration proceedings be governed by the Federal Rules of Evidence. The Agency also claims that the award is not deficient because the reprimand fails to specify any law or regulation that the grievant violated. The Agency argues that the grievant knew or should have known the Agency regulations pertaining to small procurements and the regulations he violated. The Agency asserts that, in any event, several Agency witnesses testified to the procurement regulations that were violated and the award is based on this testimony.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
We reject the Union's contention that the award is deficient because the Arbitrator did not specifically address the alleged violations by the Agency of regulations and the parties' agreement. The Authority has repeatedly held that the fact that an arbitrator's opinion does not mention an issue does not establish that the arbitrator did not consider and rule on the issue. For example, International Federation of Professional and Technical Engineers, Local 11 and U.S. Department of the Navy, Naval Electronic Systems Engineering Center, Vallejo, California, 46 FLRA No. 80 (1992), slip op. at 6 (and cases cited in the decision). Likewise, the Authority has repeatedly held that there is no general statutory obligation to set forth any specific findings or rationale to support an award denying a grievance. Id. In our view, the Arbitrator implicitly found no violations of the agreement or regulations and no violations that absolved the grievant of responsibility for his neglect of duty, and the award is not deficient by failing to set forth such findings in denying the grievance. See id.
Furthermore, to the extent that the Union is arguing that the award is deficient because the Agency committed violations of regulations that warranted the grievance being sustained, we conclude that no basis is provided for finding the award deficient. We view the Union's argument to constitute nothing more than disagreement with the Arbitrator's determination not to sustain the grievance. As such, the argument fails to establish that the award is deficient. See id.
To the extent that the Union is arguing that the Agency violated the parties' agreement and that the award is deficient because it sustains the grievance in the face of those violations, we construe the Union's argument as a contention that the award fails to draw its essence from the collective bargaining agreement. To demonstrate that an award is deficient on this ground, it must be shown 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 purposes 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, id. at 9. 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 erred in failing to find a violation of the agreement or a violation that warranted sustaining the grievance. Id. The interpretation and application of the collective bargaining agreement is a matter left solely to the arbitrator because it is the arbitrator's interpretation and application of the agreement for which the parties have bargained. Id. The Union fails to establish that anything in the Arbitrator's award disregards the agreement or is irrational, unfounded, or implausible. Accordingly, the Union's arguments provide no basis for finding the award deficient.
We similarly conclude that, to the extent that the Union is arguing that the award is deficient because procurement regulations permit the actions taken by the grievant, no basis for finding the award deficient is provided. As recognized by the Arbitrator, the grievant was not disciplined because his actions were prohibited by procurement rules, but because his choice of those actions under the circumstances constituted an error in judgment. Accordingly, we view the Union's argument to constitute nothing more than disagreement with the Arbitrator's determination that the Agency correctly assessed the grievant's conduct in this matter as a neglect of duty. As such, the argument fails to establish that the award is deficient. See U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1172 (1992) (the Authority reconfirmed that it is for the arbitrator to determine whether a disputed disciplinary action is warranted and, if so, whether the penalty assessed was reasonable). For the same reason, we reject the Union's arguments that the award is deficient because the Agency's reprimand fails to specify any law or regulation that the grievant violated and because the reprimand is libelous in that one of the three specifications was cancelled. The Union fails to cite any authority that requires a violation of law or regulation in order to properly charge an employee with neglect of duty or that precludes an employee from being disciplined on sustained charges when one charge is cancelled. Moreover, the Union has not established how its allegation of libel otherwise requires a finding that the award is deficient. Accordingly, in our view, the Union is merely disagreeing with the Arbitrator's determination that the disputed disciplinary action was warranted.
We also agree with the Agency that alleged violations by the Agency of the Federal Rules of Evidence provide no basis for finding the award deficient. Absent agreement of the parties to the contrary, there is no requirement that arbitration proceedings be governed by the Federal Rules of Evidence. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 413 (1991). The Union fails to establish that the rules governed in this case. The alleged violation of 5 CFR § 771.302 by an Agency official similarly provides no basis for finding the award deficient. The provisions for an agency administrative grievance system by their own terms do not apply to grievances covered by a grievance procedure negotiated under section 7121 of the Statute. 5 CFR § 771.204; see also International Federation of Professional and Technical Engineers, Local No. 4, AFL-CIO-CLC and Department of the Navy, Portsmouth Naval Shipyard, 25 FLRA 895, 898 (1987) (the agency administrative grievance system cannot cover grievances covered by a negotiated grievance procedure).
Accordingly, we will deny this exception.
IV. Second Exception
A. Positions of the Parties
The Union contends that the award is deficient because the Arbitrator failed to consider the issue o