48:0777(81)AR - - Army Support Command, Fort Shafter, HI and IAM, HI Federal Lodge 1998 - - 1993 FLRAdec AR - - v48 p777
[ v48 p777 ]
The decision of the Authority follows:
48 FLRA No. 81
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY SUPPORT COMMAND
FORT SHAFTER, HAWAII
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
HAWAII FEDERAL LODGE 1998
October 27, 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 Paul Colbert 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 a grievance alleging that the Agency violated the parties' collective bargaining agreement by suspending the grievant for 1 day. 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, an electrician, refused requests by contractor and military personnel to operate a switchboard. Subsequently, the grievant received a 1-day suspension for being uncooperative and disrespectful. The Union grieved the suspension and, when it was not resolved, it was submitted to arbitration. The issue as framed by the Arbitrator was:
Was the grievant suspended for just cause in accordance with Article 20, Section 1 of the agreement between the parties[?] If not, what shall be the remedy?(1)
Award at 2.
The Arbitrator found that, consistent with a past practice of which the grievant was aware, "the grievant was required to cooperate with [c]ontract and [m]ilitary personnel by either operating the switchboard as requested[,] or if uncertain, actively seeking out supervisory direction." Id. at 5 (emphasis omitted). The Arbitrator found that, during the incident in question, the grievant was "yelling and screaming . . . using profanity and being abusive," and, thereby, was "disrespectful to [c]ontract and [m]ilitary personnel . . . ." Id. at 7.
The Arbitrator rejected the Union's claim that the suspension was motivated by anti-union animus. The Arbitrator noted that although "the grievant was very active in his role as Union Steward[,]" the Union did not "establish a connection between the grievant's Union activity and the time period of [the] instant case." Id. at 10. The Arbitrator concluded that the grievant was suspended for just cause, and, as such, denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator erred by improperly characterizing the testimony of one witness and by relying on hearsay testimony of another witness. The Union also contends that the Arbitrator: (1) misrepresented a Union exhibit; and (2) violated Article 23, Section 6, of the agreement by "interject[ing] the term past practice and quot[ing] from . . . an [a]greement that was not negotiated with the Union." Exceptions at 2.(2) According to the Union, the Arbitrator failed to understand certain testimony and erred in failing to conclude that the parties' agreement does not permit unit employees "to work under the direction of either [military personnel] or the contractor." Id. at 4.
The Union also argues that the award is not "drawn from the collective bargaining agreement[.]" Id. at 2. In this regard, the Union contends that the Arbitrator violated the agreement by considering a Union exhibit as though it was the parties' negotiated agreement and by failing to conclude that military and contractor personnel are not management officials and are not authorized to direct the work of the grievant.
Further, the Union contends that the award is contrary to law because it is inconsistent with the grievant's rights under the First Amendment to the Constitution. The Union states that the grievant's speech was merely an attempt "to establish responsibility for the desired work since he had no work order coverage for the demanded service." Id.
Finally, the Union claims that the grievant's suspension was motivated by anti-union animus. The Union contends that the Arbitrator failed to consider evidence that other employees who refused to assist contract personnel were not disciplined.
The Agency contends that the Union's exceptions do not provide a basis for finding the award deficient.
IV. Analysis and Conclusions
A. Award Is Not Based a Nonfact
We construe the Union's contention that the Arbitrator misrepresented certain facts and testimony as a contention that the award is based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, 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, 1372 (1993) (Bureau of Prisons).
The Union contends that the Arbitrator mischaracterized the testimony of one witness and relied on the hearsay testimony of another witness in finding a past practice of cooperation between Agency employees and contract personnel. However, the Union has not established that the Arbitrator's evaluation of the disputed testimony is clearly erroneous or that, even if it were, the Arbitrator would have reached a different result but for his error. In our view, the Union's exceptions constitute mere disagreement with the Arbitrator's evaluation of evidence and the credibility and weight given the witnesses' testimony and, as such, provide no basis for finding the award deficient. See U.S. Department of Defense, Defense Commissary Agency, Pearl Harbor, Hawaii and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 48 FLRA 476, 478 (1993); Bureau of Prisons, 47 FLRA at 1372.
Further, although the Union claims that the Arbitrator misrepresented a Union exhibit by omitting certain facts about the document, the Union has not demonstrated that, even if the Arbitrator had considered these facts, he would have reached a different conclusion regarding the disputed suspension. In this regard, we note that, in addition to the disputed exhibit, the Arbitrator relied on other evidence and testimony to determine that the grievant acted in disregard of a past practice of cooperation between Agency employees and contract personnel. See Award at 4. We find that the Union's exception constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and provides no basis for finding the award deficient. See, for example, 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 (1993); U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA 3, 9 (1993) (DOD, Dependents Schools).
We reach the same conclusion regarding the Union's remaining arguments. Specifically, we find the Union's claims that the Arbitrator failed to understand the grievant's motive in refusing to assist the contractor; and failed to find that Agency employees are not required to work under the direction of contract or military personnel, constitute mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence. As such, these arguments provide no basis for finding the award deficient. See Id. at 9.
B. Award Does Not Fail to Draw Its Essence From the Agreement
In order for an award to be found deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate 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, for example, American Federation of Government Employees, AFL-CIO, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 48 FLRA 336, 340-41 (1993).
The Union has not shown that the award is deficient under any of these tests. Although the Union claims that the Arbitrator improperly modified the parties' agreement, improperly considered a Union exhibit as part of the parties' agreement, and that the award violates Article 3, and other provisions of the agreement, the Union has not shown that the Arbitrator's award results from an irrational or implausible interpretation of the agreement. In our view, this exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence and interpretation of the agreement in determining that the grievant was suspended for just cause. As such, the Union has not demonstrated that the award fails to draw its essence from the agreement. Accordingly, we will deny the exceptions.
C. Award Is Not Contrary to Law
In determining whether a Federal employee's First Amendment rights have been violated, we apply the test set out in Connick v. Myers, 461 U.S. 138 (1983) (Connick). See Panama Canal Commission and International Organization of Masters, Mates and Pilots Marine Division ILA, AFL-CIO, Panama Canal Pilots Branch, 33 FLRA 15, 22 (1988), citing Rankin v. McPherson, 107 S. Ct. 2891 (1987). The threshold question under Connick is whether the grievant's speech involves a matter of public concern. Connick, 461 U.S. at 146. Only if the speech involves a matter of public concern and, thus, is constitutionally protected, does Connick require the application of a balancing test. See American Federation of Government Employees, Local 3197 and U.S. Department of Veterans Affairs, Medical Center, Seattle, Washington, 48 FLRA 350, 354-55 (1993). Under Connick, we are required "to seek 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Id. at 355 (quoting Connick at 142).
The Union has not identified the grievant's statements it considers protected by the Constitution and has not established that such statements pertain to matters of public concern. As such, we have no basis on which to conclude that the grievant's statements are protected under the First Amendment and it is not necessary to apply the Connick test. Accordingly, we conclude that the Union has not established that the award is deficient as contrary to the Constitution.
D. Arbitrator Did Not Fail to Consider Evidence
The Union claims that, although it presented evidence that other employees who refused to assist contract personnel were not disciplined, the Arbitrator "negated the Union's position . . . ." Exceptions at 3. We construe this contention as a claim that the Arbitrator failed to consider relevant evidence.
We find, contrary to the Union's argument, that the Arbitrator did consider the Union's evidence. In this regard, the Arbitrator found that the other employees "refusing to help had valid reasons . . . were cooperative in seeking the direction of supervision . . . [and] were not in any way disrespectful to those making the request . . . ." Award at 9. In our view, this exception constitutes mere disagreement with the Arbitrator's determination that "the Union did not present any evidence . . . which would establish a connection between the grievant's Union activity and the time period of [the] instant case." Id. at 10. See U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, San Bruno, California and National Fe