48:0717(73)AR - - AFGE, Local 3887, National Council of Department of Education Locals, Council 252 and Education, Institutional Review Branch, Office of Student Financial Assistance, Region IV - - 1993 FLRAdec AR - - v48 p717
[ v48 p717 ]
The decision of the Authority follows:
48 FLRA No. 73
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF DEPARTMENT OF EDUCATION LOCALS
U.S. DEPARTMENT OF EDUCATION
INSTITUTIONAL REVIEW BRANCH
OFFICE OF STUDENT FINANCIAL ASSISTANCE
October 19, 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 John Paul Simpkins 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 of an employee challenging a 14-day suspension for disclosing confidential information. The grievant claimed that the discipline was not for just cause. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant is a GS-12 Institutional Review Specialist in the Agency's Office of Post-Secondary Education, Student Financial Assistance Programs (SFA). The SFA is responsible for, among other things, conducting program reviews of post-secondary schools that receive Federal funds for student financial assistance. The Federal funds used by the schools are administered and monitored by the various states where the schools are located. The SFA conducts announced and unannounced program reviews of the schools to ensure that the schools abide by Federal regulations and use Government money responsibly. In an announced program review, a school is notified 15 to 30 days prior to a visit by a review team that a review will be conducted. In an unannounced program review, a review team arrives at a school without prior notice to conduct the review.
The grievant conducted an announced program review at the Charm Beauty School (Charm) in Jackson, Mississippi between July 8 and July 12, 1991. While the grievant was conducting the Charm review, the SFA received a copy of a state program review of Charm that had been conducted between April 9 and April 12, 1991, by the Mississippi Guarantee Student Loan Agency (MGA). An Agency review of the grievant's and the MGA's program review reports revealed some disparities. On or about November 4, 1991, the grievant's supervisor "informed the grievant that the discrepancy in the Charm review was too great to let his review stand and required further investigation by someone else." Award at 3. The Agency decided to conduct an unannounced review of Charm between November 18 and November 22, 1991, to settle any discrepancies between the reports. The unannounced review of Charm was included in the Agency's First Quarter Travel Schedule for Fiscal Year 1992 that was prepared by the grievant's Branch Chief and distributed to the staff by the grievant's supervisor on October 29, 1991.
On November 19, 1991, the day after the unannounced review began, the lead reviewer telephoned the grievant's supervisor to inform the supervisor that Charm had been expecting the arrival of the reviewers. According to the lead reviewer, Charm officials stated to the review team that Charm had been advised by the grievant prior to the unannounced review that another review would take place because of discrepancies between the MGA's report and the grievant's report. The grievant's supervisor considered the grievant's disclosure of confidential information to Charm a serious breach of Agency security and recommended that the grievant be suspended for 14 days for "'deliberate disclosure of restricted [SFA] program review plans to an affected institution[,] thereby violating, either intentionally or unintentionally, [SFA] internal security rules.'" Id. at 12 (quoting Joint Exhibit 11, Notice of Proposed Suspension).
The Union filed a grievance challenging the suspension of the grievant. The grievance was not resolved and was submitted to arbitration. The parties stipulated to the following issues:
Was the grievant . . . disciplined for sufficient and just cause consistent with Article 36 of the [c]ollective [b]argaining [a]greement . . . , applicable law, rule and regulations and was the 14[-]day suspension appropriate in this case[?]
Id. at 12.(1)
The Arbitrator found that the grievant learned of the decision to conduct an unannounced review at Charm from the Agency's travel schedule. The Arbitrator concluded that the evidence before him was "clear and unmistakable that the grievant engaged in telephone conversations with Charm after he acquired knowledge of [Agency] plans to conduct another unannounced program review and the reason for it." Id. at 14. The Arbitrator found that Charm officials knew that another review would be conducted because of the inconsistencies in the grievant's report and the MGA's report. According to the Arbitrator, the unannounced review team was informed by Charm that the grievant had advised Charm officials that they would receive a letter regarding the review prior to the arrival of the program review team.
The grievant admitted at the arbitration hearing that Charm contacted him several times by telephone after he completed his review of the school, but claimed that the contacts were related to requests for "extensions" and that "[a]t no time did he initiate contact, or say there was the possibility of a second review when he was contacted." Id. at 7. The Arbitrator determined that the grievant's denial that he had informed Charm of another program review was not credible. The Arbitrator found that "clear evidence" demonstrated that the grievant had informed Charm that there would be another program review and that he did so "with full knowledge that an unannounced program review is communicated on site at the time the program specialist arrives at the school with a letter announcing the purpose." Id. at 15.
The Arbitrator determined that "the grievant breached a policy of confidentiality by informing Charm officials that another program review was being considered by his office." Id. Additionally, the Arbitrator determined that it was immaterial that the grievant did not specify the nature of the review or when it would be conducted. The Arbitrator stated that "[u]nannounced program reviews are performed to detect fraud and abuse in the management and administration of government funding to the institution or school under review" and that "by mentioning the fact that another program review was being considered, the grievant destroyed Management's objective to conduct the review in a certain manner and created a situation where it could be more difficult if not impossible to identify liabilities of the school." Id. The Arbitrator concluded that the grievant's conduct "was a breach of well known office protocol which could have compromised the effectiveness and efficiency of the Branch" and that his "conduct was serious and not inadvertent despite the absence of evidence showing motivation." Id. at 16. Accordingly, the Arbitrator concluded that the Agency's discipline of the grievant for a serious breach of office policy was reasonable and consistent with applicable law and regulations and with the contractual requirement of sufficient and just cause. The Arbitrator found that the grievant's 14-day suspension was reasonable under the circumstances and denied the grievance.
III. Positions of the Parties
A. The Union
The Union contends that the award is contrary to the parties' collective bargaining agreement because the discipline was not for just cause. The Union argues that "[j]ust cause mandates that an employee be informed of a rule, the infraction of which may result in disciplinary action." Exceptions at 2. In this regard, the Union claims that the Agency's discipline of the grievant did not satisfy the requirements of Douglas v. Veterans Administration, 5 MSPR 280 (1981) (Douglas). In particular, the Union argues that the Agency failed to prove that internal security rules exist and that the grievant violated any of those rules. Additionally, the Union asserts that the Agency did not prove by a preponderance of the evidence that the discipline "taken against the grievant was consistent with law, regulation and [Agency] policies" and that the Arbitrator "did not take material issues and evidence into account when making his decision." Id. at 6.
B. The Agency
According to the Agency, the Union's exception constitutes nothing more than disagreement with the Arbitrator's finding that the grievant knew management planned a further unannounced review and that the grievant communicated that fact to Charm. The Agency also contends that the Union's reliance on Douglas is misplaced because the Douglas factors do not apply to suspensions of 14 days or less. The Agency claims that the Union's exception is simply an effort to relitigate the issues presented to the Arbitrator by disputing the Arbitrator's factual findings, his evaluation of the evidence and testimony, and his reasoning and conclusions.
The Agency also argues that to the extent the Union's exception constitutes a claim that the award does not draw its essence from the agreement, the Union is simply disagreeing with the Arbitrator's interpretation and application of the agreement. According to the Agency, the Arbitrator specifically found that the Agency's action suspending the grievant was for just cause and in full compliance with Article 36 of the parties' collective bargaining agreement.
IV. Analysis and Conclusions
A. The Arbitrator Was Not Required to Consider the Douglas Factors
To the extent that the Union contends that the Arbitrator's award is deficient because the Arbitrator failed to apply the Douglas factors, we disagree. The Authority has consistently held that arbitrators are not required to consider the Douglas factors in cases involving discipline of 14 days or less. See American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1371 (1993); American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 967-68 (1993); U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council Local 3725, 36 FLRA 928, 932 (1990). Because the grievant in this case was given a 14-day suspension, the Arbitrator was not bound to apply the Douglas factors in considering the reasonableness of that suspension.
B. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
The Union contends that the award is deficient as contrary to the parties' collective bargaining agreement because the record evidence fails to support the Arbitrator's finding that the grievant was disciplined for just cause for knowingly breaching a requirement of confidentiality. We construe the Union's argument as an assertion that the award fails to draw its essence from the agreement. To demonstrate that the award is deficient on this ground, 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 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. Based on his finding that the grievant notified Charm of another review, knowing that the information was confidential, the Arbitrator determined that the Agency did not violate the parties' agreement by giving the grievant a 14-day suspension. We have no basis on which to conclude that the Arbitrator's interpretation of the agreement is implausible, irrational, unfounded in fact, or unconnected to the wording of the agreement. The Union has not demonstrated that the award fails to draw its essence from the agreement. In our view, the Union's exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and his evaluation of the evidence and testimony. As such, this exception provides no basis for finding the award deficient. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992) (Tinker); U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 1300, 1302 (1990). Accordingly, we will deny this exception.
C. The Award Is Not Deficient on Other Grounds
We find that the Union's assertions that the award is deficient because the Agency did not prove by a preponderance of the evidence that the grievant's discipline was consistent with law, regulation and Agency policies and because the Arbitrator did not take certain issues and evidence into account when making his decision constitute nothing more than disagreement with the Arbitrator's findings of fact and his evaluation of the evidence and testimony in determining that there was just and sufficient cause for the 14-day suspension assessed to the grievant. As such, these assertions provide no basis for finding the award deficient. See Tinker, 44 FLRA at 286.
Additionally, we note that unless a specific burden of proof is required by law or the parties' collective bargaining agreement, an arbitrator has authority to establish whatever standard he or she considers appropriate and the award will not be found deficient on that basis. See American Federation of Government Employees, Local 1988 and U.S. Department of Veterans Affairs, Brooklyn Medical Center, 46 FLRA 1450, 1455 (1993). In this case, the Union did not establish that any specific burden of proof was