48:0342(29)AR - - Oklahoma City Air Logistics Command, Tinker AFB, OK and AFGE, Local 916 - - 1993 FLRAdec AR - - v48 p342
[ v48 p342 ]
The decision of the Authority follows:
48 FLRA No. 29
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS COMMAND
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
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 Don J. Harr filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated an article of the parties' local collective bargaining agreement and an Air Force regulation when it suspended the grievant for 14 days. We conclude that the award is deficient because it does not draw its essence from the parties' collective bargaining agreement. Accordingly, we will set aside the award.
II. Background and Arbitrator's Award
The grievant, a machine tool operator, received a 14-day suspension in lieu of removal from service for his purchase, use, and possession of illegal drugs. The grievance over the disciplinary action was not resolved and was submitted to arbitration.
The question of the grievant's guilt or innocence was not at issue before the Arbitrator. The parties stipulated to the following issue:
Did the Agency violate Article 13 of the Local Supplement to the Master Labor Agreement and Air Force Regulation 110-15 when [it] took administrative discipline to suspend the [g]rievant for fourteen days? If so, what is the proper remedy?
Award at 2.
The Arbitrator found that this case involved Air Force Regulation 110-15 (AFR 110-15) and its relationship to Article 13 of the parties' 1983 local supplemental agreement. AFR 110-15, entitled "Judge Advocate General USE OF U[.]S[.] MAGISTRATES FOR TRIAL OF MISDEMEANORS COMMITTED BY CIVILIANS," provides in relevant part:
This regulation sets forth policy and procedures for the prosecution by U[.]S[.] Magistrates of civilians who commit misdemeanors on military reservations under Air Force control. It applies to Air Force installations located in the United States or in Puerto Rico over which the United States has either exclusive or concurrent legislative jurisdiction.
1. Air Force Policy.
b. An installation commander may determine whether charges against civilians should be brought before U[.]S[.] Magistrates for trial. Before reaching this determination, other means (such as suspending base driving privileges, disciplinary action under civilian personnel regulations, or, in the case of nongovernment personnel, exclusion from the base) should have been considered and found not adequate or not appropriate. If safety, discipline, or other considerations 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 according to the rules prescribed by the local U[.]S[.] District Court. Once a commander makes such a determination, all civilian offenders who commit these offenses should be referred to the U[.]S[.] Magistrate for judicial disposition.
Id. at 4.
Article 13 of the parties' 1983 local supplemental agreement, entitled "MAGISTRATE SYSTEM," provides in relevant part:
SECTION A: In accordance with paragraph 1, AFR 110-15, the Base Commander 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.
* * * * *
SECTION F: The fact that a bargaining unit employee has received a summons to the United States Magistrate Court will be considered when determing [sic] if a proposal of administrative action is warranted.
Id. at 5.
The Arbitrator agreed with the Union's interpretation of AFR 110-15, and found that once a commander determines that administrative remedies, including disciplinary action under civilian personnel regulations, are inadequate or inappropriate for certain offenses, all such offenses committed by civilians are to be brought to a magistrate for judicial disposition. The Arbitrator found that the language of Article 13 is controlling, and that, pursuant to Article 13, the installation commander made a blanket determination that certain noted offenses should be referred to a magistrate.
The Arbitrator noted and adopted another arbitrator's award involving these same parties concerning the meaning of AFR 110-15 (the Moore award). The grievant in that case pleaded guilty to criminal charges before a magistrate and the agency subsequently took administrative action relative to the same conduct for which he was convicted in magistrate court. The arbitrator in that case found that AFR 110-15 provided "the installation commander with two options: (1) suspending base driving privileges [or] disciplinary action under civilian personnel regulations; or (2) [i]f such action is not adequate nor appropriate, then referring to a United States Magistrate for trial." Id. at 6 (quoting the Moore award). Accordingly, the arbitrator in that case concluded that the agency inappropriately issued administrative discipline.
In this case, the Arbitrator found that, by agreeing to Article 13, the commander exercised his discretion and found that administrative action was neither adequate nor appropriate for drug-related offenses. The Arbitrator further found that, as a result, the Agency was bound "to only a criminal proceeding before a [m]agistrate" for those offenses. Id.
Accordingly, the Arbitrator concluded that the Agency violated Article 13 of the parties' 1983 local supplemental agreement and AFR 110-15 when it took administrative action to suspend the grievant for 14 days. The Arbitrator directed the Agency to reimburse the grievant for all wages and benefits, including overtime, which he would have received during his 14-day suspension, and to remove all reference to the 14-day suspension from all records. The Arbitrator retained jurisdiction for a period of 90 days in the event the parties were unable to agree upon the amount of compensation due the grievant.
The Agency first contends that the award is contrary to AFR 110-15. The Agency relies on and cites U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990), for holding that: (1) the Authority will find an award deficient under section 7122(a)(1) of the Statute when the award conflicts with a governing agency rule or regulation; and (2) collective bargaining agreements, and not agency rules and regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement and the rule or regulation. The Agency argues that the language of AFR 110-15 is consistent with Article 13, and, therefore, that AFR 110-15 is controlling.
According to the Agency, AFR 110-15 provides that an installation commander may refer certain offenses that occur on the installation to a U.S. Magistrate for trial, and that before doing so, the commander must determine if other action is not adequate or not appropriate. The Agency asserts that the regulation does not require it to pursue only one type of disciplinary action, as the Arbitrator found. The Agency contends that nowhere in AFR 110-15 is there any language that precludes administrative action once a matter has been referred to a U.S. Magistrate.
The Agency also contends that the award does not draw its essence from the collective bargaining agreement and that the award is in conflict with decisions rendered by other arbitrators who have decided the same issue as presented before the Arbitrator in this case. The Agency argues, citing to a decision of an administrative judge of the Merit Systems Protection Board (MSPB), that the language of Article 13 and AFR 110-15 demonstrates that Article 13 allows the Agency the discretion to take administrative action even after referral to a U.S. Magistrate. The Agency contends that the Arbitrator's award "is a complete rewriting of the language of [Article 13] . . . ." Id. at 9. The Agency further contends that other arbitrators who have ruled on this issue, involving the same parties and the same contract language, have concluded that the provisions of Article 13 and AFR 110-15 do not preclude the Agency from taking administrative action and seeking criminal disposition of the same charges against an employee.
Finally, the Agency contends that the award violates its management's rights set forth in section 7106 of the Statute. The Agency asserts that the award "directly and absolutely denies the [A]gency the right to discipline its employees." Id. at 11.
The Union disagrees with the Agency's position that AFR 110-15 does not require that the commander must choose between administrative action or criminal prosecution. In particular, the Union cites and notes the second part of paragraph 1.b. of AFR 110-15, which provides that "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 . . . ." Union's brief at 3 (emphasis in original). The Union argues that the Agency must abide by a judicial process. In this regard, the Union claims that this matter was not referred to the U.S. Magistrate and that no charges were filed against the grievant in any court of law.(1)
The Union also disagrees with the Agency's position that AFR 110-15 is consistent with Article 13. The Union argues that because the regulation and the contract are in conflict, the contract language must prevail. The Union maintains that Article 13 provides that all matters listed, including the offense with which the grievant was accused, will automatically be referred to a U.S. Magistrate for trial. The Union contends that Article 13 clearly restricts the Agency in two ways: (1) by making any Agency action contingent upon the issuing of a summons or writ to appear before a magistrate; and (2) by conditioning any action by the Agency upon the adequacy and appropriateness of such action.
The Union contends that Article 13 clearly restricts the Agency in that it does not permit the Agency to take administrative action if it does not pursue the matter judicially. The Union argues that there are no decisions by arbitrators or the MSPB that allow the Agency the latitude to take administrative action if there has not been a conviction by a magistrate.
V. Analysis and Conclusions
We conclude that the award is deficient because it does not draw its essence from the parties' collective bargaining agreement. To demonstrate that an award fails to draw its essence from a collective bargaining 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 of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, American Federation of Government Employees, AFL-CIO, Local 3615 and U.S. Department of Health and Human Services, Social Se