49:0529(46)AR - - AFGE, Local 1336 and HHS, SSA, Mid-America Program Service Center, Kansas City, MO - - 1994 FLRAdec AR - - v49 p529
[ v49 p529 ]
The decision of the Authority follows:
49 FLRA No. 46
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1336, AFL-CIO
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
MID-AMERICA PROGRAM SERVICE CENTER
KANSAS CITY, MISSOURI
March 17, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Charles J. Marino 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 when it suspended the grievant for excessive absenteeism. 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, a file clerk at the Agency's Mid-America Program Service Center, filed a grievance claiming that the Agency violated, among other things, Articles 3 and 23 of the parties' collective bargaining agreement when it suspended her for 3 days.(1) When the grievance was not resolved, it was submitted to Arbitration and the Arbitrator framed the issue as follows:
Did management violate Article[s] 3, 23, 24, and 31 of the parties' National Agreement when it issued the suspension . . . to [the grievant] and if so, what is the proper remedy?
Award at 2.
Before the Arbitrator, the Agency argued that the grievant repeatedly failed to adhere to its rules for requesting and obtaining approval of leave and, as a result, incurred absence without leave (AWOL) charges. The Agency contended that it had warned the grievant orally and in writing, counselled her, and imposed prior discipline in an effort to correct the grievant's conduct. The Agency asserted that the grievant's failure to respond to the Agency's corrective actions resulted in her 3-day suspension.
The Union urged the Arbitrator to overturn the suspension "because of . . . procedural errors that were harmful to the grievant." Id. at 3. In addition to the alleged violations of the parties' collective bargaining agreement, the Union claimed that the grievant's suspension violated certain Agency personnel regulations and the Federal Personnel Manual. Although not quoted in the award, the Arbitrator noted that the cited portions of the parties' agreement and regulations "in a nutshell, speak to the use of material that may be more than one (1) year old . . . ." Id. at 2-3.
The Arbitrator determined that under Authority precedent, the harmful error standard set forth at 5 C.F.R. § 1201.56(c)(3), "'need not be applied to . . . suspensions of 14 days or less.'"(2) Id. at 4. However, the Arbitrator also determined that even if the standard applied, he was unable to "give much weight to the [Union's] objections." Id. Moreover, according to the Arbitrator, the Agency had an obligation to review the grievant's overall work record and past performance when deciding "how to respond to a rules violation." Id. The Arbitrator found that, in addition to issuing a reprimand, the Agency warned the grievant that appropriate disciplinary action would be taken if she incurred further AWOL charges and informed her of the procedures she was expected to follow for requesting leave. Thus, the Arbitrator concluded that based on the evidence presented, the Agency had just cause to discipline the grievant and, that "the manager did act responsible (sic) within the parameter of the National Agreement[.]" Id. at 5. Consequently, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union argues that the award fails to draw its essence from the parties' collective bargaining agreement and is contrary to Agency regulations. In this regard, the Union contends that Article 23, Section 4, of the agreement specifies that a reprimand will be made part of an employee's personnel file for up to 1 year. The Union further contends that "HEW Personnel, SSA TS. No. g378 (11-16-79) Employee Records and Files Maintained By Operating Offices, Chapter S293, Subchapter 1 Exhibit VI at paragraph 12"(3) provides that the retention period for a reprimand is "6 months after the date of the decision." Exceptions at 2. The Union alleges that the award is deficient because the Arbitrator disregarded the parties' agreement and the Agency's regulation when he upheld the grievant's suspension, which was partly based on a reprimand that was more than 1 year old.
The Agency argues that the Union's exceptions constitute disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement and, as such, are an attempt to relitigate the merits of the case before the Authority. The Agency claims that the exceptions provide no basis for finding the award deficient.
IV. Analysis and Conclusions
At the outset, we reject the Union's claim that the award conflicts with an Agency regulation. As noted earlier, the Union did not provide a copy of the referenced regulation. Moreover, the Union does not assert, and we have no other basis on which to conclude, that the cited Agency regulation governs the matter. Consequently, the Union has not established that the award is deficient because it conflicts with a governing Agency regulation. See 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, 194-95 (1990).
Further, we reject the Union's contention that the award fails to draw its essence from the parties' agreement. To demonstrate that an award fails to draw its essence from the parties' 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 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, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 46 FLRA 1191, 1194 (1993) (Randolph Air Force Base).
The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Arbitrator found that, based on the evidence, "the Agency had just cause to discipline [the grievant]" and concluded that the suspension did not violate the parties' collective bargaining agreement. Award at 5. Although only one portion of the parties' agreement has been provided to us, we find nothing in the award which is irrational, unfounded, implausible, or in manifest disregard of the portion of the agreement provided. In our view, the Union's argument constitutes nothing more than disagreement with the Arbitrator's determination that no remedy was warranted for the implicit contract violation. Such disagreement provides no basis on which to find the award deficient. See Randolph Air Force Base, 46 FLRA at 1195.
For the foregoing reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 3, Section 4, is the only portion of the parties' collective bargaining agreement which has been provided to us and, as quoted by the Union, provides, in pertinent part:
The reprimand . . . will be made a part of both the S-7B Extension File and the Official Personnel Folder for up to 1 year.
Exceptions at 2.
2. The Arbitrator erroneously cited 5 C.F.R. § 1202.56, however, 5 C.F.R. § 1201.56(c)(3) defines harmful error as follows:
Error by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. The burden is upon the appellant to show that the error was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.
3. The Union did not provide a copy of the cited Agency regulation to the Authority. We note that section 2425.2(d) of the Authority's Rules and Regulations requ