49:0021(5)AR - - Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, KY and AFGE Local 1286 - - 1994 FLRAdec AR - - v49 p21



[ v49 p21 ]
49:0021(5)AR
The decision of the Authority follows:


49 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

ASHLAND, KENTUCKY

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1286

(Union)

0-AR-2505

_____

DECISION

February 4, 1994

_____

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 Aaron S. Wolff 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 concerning a 1-day suspension that was imposed on the grievant for violating security procedures. For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant is employed by the Agency as a cook foreman. The yeast that is used for baking items in the prison bakery is considered a "hot" item because it can be used to produce home-made alcoholic beverages. Award at 1. As a result, a cook foreman must be present "when yeast is drawn, mixed, placed in the dough or other product until it is thoroughly mixed with the product. The foreman must then wash out the bucket so that no residue is left for the inmates to take." Id. at 2. On October 19, 1992, when the grievant was assigned as bakery foreman, Assistant Food Service Administrator Grimes observed four unsupervised inmates in the prison bakery handling a mixture of yeast, milk, water and sugar.

On that same day, Grimes reported the incident on a "Performance Log." Id. at 3. The report was then given to the grievant's second line supervisor, who proposed a 3-day suspension. The notice of proposed suspension was given to the grievant on December 7, 1992. The notice was not provided to the grievant earlier because the grievant was out of the office from October 22 to October 27, 1992, and then again from November 1 to December 7, 1992. After meeting with the grievant, and considering the evidence that had been provided both to the warden and the grievant, the warden imposed a 1-day suspension. In mitigating the proposed penalty, the warden considered the grievant's prior work performance and also the Agency's Standards of Employee Conduct and Responsibility, which provides a range of penalties that may be imposed for a breach of facility security.

A grievance was filed protesting the 1-day suspension. When the grievance was not resolved, it was submitted to arbitration. The parties stipulated the following issue for resolution by the Arbitrator:

[W]hether the grievant was justly suspended for violation of security procedures on October 19, 1992; and, if so, was the penalty within the acceptable range delineated in the Agency's table of penalties?

Award at 1.

The Arbitrator found that the Agency adequately demonstrated that the grievant breached the security requirements with respect to the handling of yeast and that the penalty imposed was reasonable and proper. In reaching this result, the Arbitrator rejected a number of Union arguments. For example, as relevant here, the Arbitrator addressed the Union's claim that the Agency failed to show the grievant the performance log within 15 days after it was prepared by Grimes, as required under the parties' collective bargaining agreement. The Arbitrator noted that the Union did not cite or refer to any specific provision of the contract but that even if there were such a provision, it was not violated. In this regard, the Arbitrator found that the grievant worked only 8 days between October 19 and December 7, 1992, and that after December 7, the grievant was advised that the information concerning the proposed discipline was available to him on request.

The Arbitrator also found that the facts that the grievant was not told until December 7, 1992, of any proposed disciplinary action and did not see Grimes' report until January 5, 1993, were "not of critical importance in this case[,]" noting that neither the grievant nor anyone on his behalf requested such documentation prior to January 5, 1993. Id. at 15. However, the Arbitrator agreed with the Union that it might have been wiser to have confronted the grievant with his alleged misconduct prior to the grievant's long absence from work. The Arbitrator also noted that while Grimes' report was written on a form entitled "Performance Log," "it was not in fact a 'Performance Log,' but simply a report of the incident which was treated by the Agency as improper conduct of the grievant." Id. at 14.

Finally, the Arbitrator found that the Union had not rebutted the evidence the Agency relied on in imposing the suspension. Consequently, based on his findings and conclusions, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union asserts that the award does not draw its essence from the agreement because the award does not represent a plausible interpretation of the agreement and because it evidences a manifest disregard of the agreement.

First, the Union argues that the Agency's use of the October 19, 1992, performance log violated Article 6, section m of the parties' agreement.(1) The Union explains that the grievant was not shown the performance log within 15 working days as required in that provision and, further, that the log was used in an official capacity before the grievant became aware of its existence. The Union also argues that by allowing the performance log into evidence, the Arbitrator violated Article 32, section f of the agreement and "created harmful error . . . ." Exceptions at 4.(2)

The Union further alleges that the Agency's failure to furnish the grievant with a copy of the performance log, or otherwise inform the grievant of the proposed disciplinary action, deprived the grievant of an attempt to informally resolve the grievance in violation of Article 31, section b of the agreement.(3) In addition, the Union asserts that the Agency's failure to provide all documents in this disciplinary case violates Article 30, section h of the agreement.(4)

B. Agency's Opposition

The Agency argues that the Union is raising issues that were not grieved. For a variety of reasons, the Agency maintains that the issues now being raised by the Union have no merit. The Agency further contends that the Union's exceptions constitute mere disagreement with the Arbitrator's interpretation of the collective bargaining agreement and should be denied.

IV. Analysis and Conclusions

We will find an award deficient when it is contrary to law, rule, or regulation, or on grounds similar to those applied by Federal courts in private sector labor relations cases. For the following reasons, we find that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.

To determine whether an award is deficient because it fails to draw its essence from a collective bargaining agreement, the party making such an assertion 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 agreement; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 41 FLRA 1435, 1439 (1991).

The Union fails to establish that the award is deficient under any of these tests. More particularly, the Union has not shown that the Arbitrator's findings with respect to the performance log, including the date on which the Agency provided the log to the grievant and the circumstances under which the grievant acquired the log, were irrational, implausible, unfounded, or in manifest disregard of the agreement. For example, despite the Union's claim that the Agency did not furnish the performance log to the grievant within 15 working days, the Arbitrator found that the grievant was at work only 8 days between the date the log was prepared and December 7, at which time the log was made available to the grievant. Additionally, with respect to the Union's claim that the log was used in an official capacity before the grievant became aware of its existence, there is no evidence that the Arbitrator found that the performance log was part of an informal file maintained on the grievant that was required to be disclosed under Article 6, section m of the parties' agreement. Rather, the Arbitrator found that the log was simply a report of the incident that had occurred in the bakery on October 19, 1992. Accordingly, we find that the Union is merely disagreeing with the Arbitrator's evaluation of the evidence and interpretation of the agreement. Such an exception provides no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administration, Boston Region and American Federation of Government Employees, Local 1164, 48 FLRA 943, 949-50 (1993).

The Union's claim that the Agency violated the parties' agreement by using the performance log as a basis on which to impose the suspension similarly provides no basis for finding the award deficient. We have repeatedly held 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 example, General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1044-45 (1992). In this case, we find that the Union is merely disagreeing with the Arbitrator's evaluation of the evidence and his findings and conclusions that the 1-day suspension was warranted and, further, that the Union is attempting to relitigate this case before the Authority. As noted, such contention provides no basis for finding the award deficient. See id.

Finally, the Union's assertion that the Arbitrator committed harmful error by allowing the October 19, 1992, performance log into evidence is misplaced. The harmful error rule, contained in 5 U.S.C. § 7701(c), applies to an arbitrator's resolution of a grievance over performance-based and other major adverse actions covered by 5 U.S.C. §§ 4303 and 7512, respectively. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base and American Federation of Government Employees, Local 1592, 40 FLRA 1243, 1246 (1991). The harmful error rule does not apply to other actions, such as the 1-day suspension imposed in this case.

V. Order

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 6, section m provides as follows:

If a supervisor maintains an informal file about an employee, the employee shall be given an opportunity to see any notation as soon as practicable, and before the notation is used officially, but no later than 15 working days after the notation is made.

Exceptions, Attachment 1 at 7.

2. Article 32, section f states, in relevant part, as follows:

The arbitrator shall have no power to add to, subtract from, disregard, alter, or modify any of