48:0336(28)AR - - AFGE, Local 916 and Oklahoma City Air Logistics Center, Tinker AFB, OK - - 1993 FLRAdec AR - - v48 p336
[ v48 p336 ]
The decision of the Authority follows:
48 FLRA No. 28
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
August 20, 1993
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 Donald Daughton 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 alleging that the Agency violated Air Force Regulation 110-15 (AFR 110-15) and the parties' local supplemental agreement by suspending the grievant for her involvement in a drug-related incident. For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, a mechanical parts repairer, was arrested by the Agency's Office of Special Investigations for "possession, use, and transfer of marijuana." Award at 2.
At the time of her arrest, "the [g]rievant admitted using, buying, and transferring marijuana and signed a written statement detailing her involvement in the offenses . . . ." Id. The Agency informed the grievant that it would not institute criminal proceedings against her because it was "interested in obtaining [her] . . . truthful testimony concerning [another employee's] activity . . . ." Id. at 3. The Agency also informed the grievant that, although it would not seek criminal prosecution against her, she would still "face administrative disciplinary action for her misconduct." Id. Thereafter, the grievant was suspended for 14 days.
The Union grieved the suspension, and when the grievance was not resolved, it was submitted to arbitration. The parties stipulated the issue before the Arbitrator as follows:
Did [c]ivilian [m]anagement violate Article 13 of the [l]ocal [c]ollective [b]argaining [a]greement when they took [a]dminstrative [a]ction to suspend a [g]rievant for 14 days? If so, can the Agency [d]ecision be sustained?
Id. at 2.(1)
The Arbitrator rejected the Union's claim that the Agency "made an exclusive decision that cases of the type involving the [g]rievant are to be handled as criminal charges before the United States Magistrate thereby precluding administrative discipline of the [g]rievent." Id. at 8.
The Arbitrator found that "[n]othing in the Master Labor Agreement, the Local Supplement to the Master Labor Agreement, or Air Force Regulation 110-15 precludes the Agency from imposing administrative discipline." Id. at 10. The Arbitrator also found that there was "no evidence submitted to cast doubt on the fact that the [g]rievant had committed acts which justify the 14[-]day suspension[,]" and that the "use of a prohibited substance, such as marijuana, on Agency property, by an employee is the kind of conduct which warrants a 14[-]day suspension." Id. Accordingly, the Arbitrator denied the grievance.
III. First Exception
A. Positions of the Parties
The Union contends that the Arbitrator exceeded his authority by "ruling upon 'evidence'" which was outside the scope of the grievance. Exceptions at 2. According to the Union, as the issue submitted to the Arbitrator concerned "contract violations and not the facts surrounding the suspension itself, no discussion of the allegations made against the [g]rievant by the Agency could be considered, nor can any be allowed." Id.
B. Analysis and Conclusions
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 were not parties to the grievance. See American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 45 FLRA 822, 827-28 (1992). The issue, as stipulated by the parties, was whether the 14-day suspension was appropriate under Article 13 of the parties' local supplemental agreement. The award is directly responsive to this issue. In our view, the Union has not demonstrated that the Arbitrator exceeded his authority. Accordingly, we will deny this exception.
IV. Second Exception
A. Positions of the Parties
The Union contends that the award violates law because it permits the Agency "to convict the [g]rievant in the wrong arena." Exceptions at 8. According to the Union, the grievant was investigated for violations of Federal and Oklahoma criminal statutes and not for the purpose of imposing administrative discipline. The Union argues that by sustaining the grievant's suspension, the award permits the Agency to "dispense rulings without regard to the protection of the rights of the accused, thereby allowing the Agency to undergo criminal proceedings[,] . . . and subject employees to the whims of [the] Agency[']s officials who have no training in matters of law." Id.
B. Analysis and Conclusions
We reject the Union's contention that the award violates law. The Union has not cited any law with which the award conflicts and none is apparent to us. As such, the Union has not supported its claim that the award is deficient as inconsistent with law. See U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 45 FLRA 797, 799 (1992). An unsupported contention that an award is contrary to law provides no basis for finding an award deficient. See U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1141-42 (1992). Accordingly, we will deny this exception.
V. Third Exception
A. Positions of the Parties
The Union contends that the award is deficient because it violates AFR 110-15 and Article 13 of the parties' local supplemental agreement. According to the Union, AFR 110-15 "sets forth policy and procedures for the prosecution by U.S. Magistrates of civilians who commit misdemeanors on Air Force installations[,]" and provides in pertinent part:
If safety, discipline, or other consideration[s] warrant, a commander may make a blanket determination that administrative disposition of certain offenses committed by civilians on base is neither adequate nor appropriate; and that all such offenses be referred to a U.S. Magistrate for trial . . . .
Id. at 2, 3 (emphasis omitted). Further, according to the Union, Article 13 of the parties' local supplemental agreement states that the base commander at the Agency made a blanket determination that drug offenses, including those with which the grievant was charged, would be referred to a United States Magistrate for trial.
The Union claims that, although a decision was made by the Agency not to pursue criminal prosecution, the grievant's offense was the type that could be referred to the U.S. Magistrate for trial, and, as such, AFR 110-15 and the local supplemental agreement prohibit the Agency from instituting a separate administrative disciplinary action. The Union also claims that the award is inconsistent with previous arbitration decisions which interpret AFR 110-15 as precluding administrative discipline for offenses which were or could have been referred to the U.S. Magistrate.
B. Analysis and Conclusions
1. The Award Is Not Inconsistent with AFR 110-15
Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. American Federation of Government Employees, Local 1815 and U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama, 47 FLRA 254, 256 (1993). Here, however, the Union has not demonstrated that the Agency's administrative discipline of the grievant is inconsistent with AFR 110-15. In our view, the Union's contention constitutes mere disagreement with the Arbitrator's conclusion that the Agency is not precluded from disciplining an employee merely because the grievant's case was the type that could have been referred to the U.S. Magistrate for criminal prosecution. We also reject the Union's contention that the award is deficient because it is inconsistent with previous arbitrators' interpretations of AFR 110-15. The Authority has held repeatedly that awards are not deficient solely on the basis that they conflict with previous awards. See U.S. Department of Transportation, Federal Aviation Administration, Southern Region, Atlanta, Georgia and National Air Traffic Controllers Association, 47 FLRA 658, 663 (1993). Accordingly, we will deny this exception.
2. The Award Draws Its Essence from the Agreement
We construe the Union's claim that the award violates Article 13 of the local supplemental agreement as a claim that the award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award fails to draw its essence from the agreement, the Union 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 Housing and Urban Development and American Federation of Government Employees, Local 476, 47 FLRA 1053, 1061-62 (1993).
The Union has not demonstrated that the Arbitrator's award is deficient under any of these tests. The Arbitrator's award was based on his interpretation of the parties' local supplemental agreement as it applies to the circumstances in this case. We have no basis on which to conclude that the Arbitrator's interpretation of the agreement is implausible, irrational, or unconnected to the wording of the agreement. As such, the Union has not demonstrated that the award fails to draw its essence from the agreement. Accordingly, we will deny this exception.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 13, Section A of the parties' local supplemental agreement provides in pertinent part:
In accordance with . . . AFR 110-15, the [b]ase [c]ommander has made a blanket determination that the following offenses will be referred to a United States Magistrate for trial:
4. Drug Related Offenses
(a) Possession or use of a controlled dangerous substance while on base.
(b) Possession of drug paraphernalia with residue/or in possession with other controlled drugs.
Award at 8.