50:0016(5)AR - - VA, Eisenhower Medical Center, Leavenworth, KS and AFGE, Local 85 - - 1994 FLRAdec AR - - v50 p16



[ v50 p16 ]
50:0016(5)AR
The decision of the Authority follows:


50 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

EISENHOWER MEDICAL CENTER

LEAVENWORTH, KANSAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 85

(Union)

0-AR-2649

_____

DECISION

November 16, 1994

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Charles E. Clark 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 exception.

The Arbitrator denied the grievance over an employee's suspension. He found that both the discipline and the Agency's step 3 response were timely under the terms of the parties' collective bargaining agreement. He also found that the suspension was for just and sufficient cause under the agreement.

We conclude that the Union's exception fails to establish that the award is deficient. Accordingly, we deny the Union's exception.

II. Background and Arbitrator's Award

In June 1993,(1) a patient at the medical center, who was also an employee with the Agency, complained that the grievant, an Agency employee, had accessed and examined his medical records without authority. On September 7, following an internal investigation and consideration of a report resulting from the investigation, the Agency's chief of staff issued to the grievant a notice of proposed suspension for 14 days for violations of the Privacy Act, 5 U.S.C. § 552a, the Electronic Communications Privacy Act, 5 U.S.C. § 2701, standards of conduct under 5 C.F.R. part 2635, and Agency policy in accessing the patient's medical records without authority and for failing to tell the truth during the investigation. After hearing the grievant's response, the chief of staff decided to suspend the grievant for 7 days. The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration on the issue of whether the Agency had just and sufficient cause to suspend the grievant for 7 days.

At arbitration, the Union moved for a bench decision on the bases that the discipline was untimely under Article 12, Section 4 of the parties' collective bargaining agreement(2) because of the unwarranted and unreasonable delay from June until September, and that the Agency's step 3 response was not timely received by the grievant. The Arbitrator denied the motion and, in his award, he found that both the discipline and the Agency's step 3 response were timely. With respect to the discipline, the Arbitrator ruled that the period of time between the receipt of the complaint in June and the proposal of disciplinary action on September 7 was not so protracted as to violate the collective bargaining agreement. With respect to the step 3 response, the Arbitrator ruled that the Agency's response was timely received by both the Union and the grievant. The Arbitrator noted that the Union's representative acknowledged that his personal receipt of the Agency's response was timely. The Arbitrator also noted that the grievant designated the Union's representative as her representative. The Arbitrator determined that under the terms of the parties' collective bargaining agreement, and consistent with prior arbitration awards, timely receipt by the grievant's representative established timely receipt by the grievant.

On the merits of the grievance, the Arbitrator determined that the Agency had just and sufficient cause to discipline the grievant. Accordingly, he denied the grievance.

III. Exception

A. Union's Contentions

The Union contends that the award is deficient because "it does not draw its essence from the parties' agreement and is therefore 'contrary to any law, rule or regulation . . . .'" Exception at 1. The Union argues that the Arbitrator changed the content of the agreement when he ruled that the disciplinary action was timely within the meaning of the agreement. The Union also argues that the Arbitrator's award is deficient because the Arbitrator failed to consider certain facts and impermissibly considered others. The Union further claims that the Arbitrator erred by not ruling on the timeliness of the step 3 response prior to hearing the merits of the grievance. The Union maintains that to have done so would have made the hearing on the merits moot under the terms of the agreement.

B. Agency's Opposition

The Agency contends that the exception should be denied because it constitutes disagreement with the arbitration procedure and the Arbitrator's factual determinations. The Agency also contends that the Union's arguments are contrary to an earlier arbitration award between the parties on the same issue.

IV. Analysis and Conclusions

We conclude that the Union provides no basis for finding that the award is deficient under the Statute.

We find that the Union fails to establish that the Arbitrator's ruling that the discipline was timely does not draw its essence from the parties' collective bargaining agreement. To establish that an award is deficient because it fails to draw its essence from the agreement, the Union must demonstrate one of the following: (1) the award cannot in any rational way be derived from the agreement; (2) the award is so unfounded in reason or in fact, and so unconnected with the wording and purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) the award evidences a manifest disregard of the agreement; or (4) the award on its face does not represent a plausible interpretation of the agreement. For example, National Federation of Federal Employees, Local 1781 and U.S. Department of Agriculture, Forest Service, 42 FLRA 703, 706 (1991). These tests and the private sector cases from which they are derived make it clear that an award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. The interpretation of a collective bargaining agreement is left solely to the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. Id.

In this case, the Arbitrator determined that, in the circumstances presented, the period of time between the receipt of the complaint in June and the proposal of the discipline in September did not violate Article 12, Section 4. In our view, nothing in the Arbitrator's interpretation or application of Article 12, Section 4 disregards the agreement or is irrational, unfounded or implausible. Instead, the Union's contention constitutes nothing more than disagreement with the Arbitrator's interpretation of Article 12, Section 4 and an attempt to relitigate this issue before the Authority. As such, the contention provides no basis for finding the award deficient. See id.

Based on long-standing and well-established precedent, we also find that the Union provides no basis for finding deficient the Arbitrator's ruling that the Agency's step 3 response was timely. The Arbitrator's ruling constitutes his determination on the procedural arbitrability issue of whether the Agency's response was timely under the parties' collective bargaining agreement. The Authority has repeatedly and uniformly held that procedural arbitrability determinations by arbitrators are generally not subject to challenge and that exceptions that constitute nothing more than disagreement with the arbitrator's determination on such an issue provide no basis for finding that the arbitrator's ruling is deficient under the Statute. For example, U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, 49 FLRA 982, 989 (1994) (AAFES). The Authority has explained that the denial of exceptions that merely disagree with an arbitrator's d