52:0787(77)AR - - National Air Traffic Controllers Association and Transportation, FAA, Memphis, TN - - 1996 FLRAdec AR - - v52 p787
[ v52 p787 ]
The decision of the Authority follows:
52 FLRA No. 77
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
December 31, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles H. Frost 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance contesting a 14-day suspension imposed on the grievant for being AWOL for 5 consecutive days. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, an air traffic controller, was arrested and jailed for 1 month for driving without a valid driver's license or license plates. When this had occurred previously, his supervisor had advised him the Agency would consider him as absent without leave (AWOL) on those days where leave could not be granted, and that being AWOL might result in disciplinary action. On the second occurrence, the grievant was notified by letter that the Agency intended to suspend him for being AWOL on more than 5 consecutive scheduled workdays and that he had 15 days in which to respond. The grievant, through his Union representative, requested several documents in order to effectively respond to the charges. The Agency denied the request. The Union filed a grievance, which was not resolved and was submitted to arbitration, on the following stipulated issue:
Did the Agency have just cause to suspend [the grievant] for 14 days for being absent without leave (AWOL)? If not, what shall be the remedy?
Award at 3.
The Arbitrator found that the Agency did have just cause to suspend the grievant. More specifically, the Arbitrator determined that the grievant had been notified that being AWOL might lead to disciplinary action. The Arbitrator also determined that the grievant had not suffered disparate treatment compared to other employees similarly situated, and that there was no personal animosity between the grievant and his immediate supervisor. Finally, the Arbitrator found that the penalty the grievant had received was not excessive, arbitrary, capricious, or unreasonable.
A. Union's Contentions
In its first exception, the Union asserts that the Arbitrator failed to consider or correctly apply Article 84, Section 3, of the FAA/NATCA agreement, which required that bargaining members be treated "fairly and equitably," a phrase the Union considers synonymous with "just cause." Union's Exceptions at 4. The Union contends that the Arbitrator erred for two reasons in determining that there was just cause to discipline the grievant. First, the Union argues that the Arbitrator erred by not comparing the grievant with all other FAA employees who were AWOL because of incarceration in determining if the grievant suffered disparate treatment. Second, the Union contends the Arbitrator erred in finding the penalty was fair. The Union maintains that the penalty was excessive and that the Arbitrator did not correctly apply all the factors set out in Douglas v. Veterans Administration, 5 MSPR 280 (1981).
In its second exception, the Union argues that the award is deficient because the Arbitrator upheld discipline against the grievant even though the Agency had not accorded the grievant his "due process rights" of notice and opportunity to respond, as required by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) (Loudermill). Exceptions at 8. The Union contends that because the grievant was told only that his actions might lead to discipline, and not that they would definitely lead to discipline, he was not given adequate notice. The Union also maintains that the Agency's failure to respond to the grievant's request for information, which he claimed he needed in order to effectively answer the charges, denied him an opportunity to respond.
In its third exception, the Union maintains that the Arbitrator erred when he applied Cornelius v. Nutt, 472 U.S. 648 (1985), and held that Merit Systems Protection Board (MSPB) standards for determining disparate treatment were dispositive. The Union cites several cases where the Authority held that arbitrators are not required to follow the MSPB in cases involving suspensions of 14 days or less.
In its fourth exception, the Union contends that the Arbitrator misapplied an Agency regulation containing a table of penalties when he determined the applicable charge against the grievant to be "unexcused absence or unauthorized absence of more than five consecutive work days,"(*) and as a result applied an inappropriate penalty. It argues that the grievant was never AWOL for more than 5 consecutive work days because he had another employee fill in for him.
In its fifth exception, the Union argues that the Arbitrator was biased against the grievant, and that this was demonstrated when the Arbitrator gave undue consideration to the cross-examination of the grievant.
B. Agency's Opposition
With respect to the Union's argument that the Arbitrator did not correctly apply the parties' collective bargaining agreement in his determination that there was just cause to suspend the grievant, the Agency contends that the Union failed to show that the award is deficient because it does not draw its essence from the agreement.
As for the Union's argument that the grievant was not given adequate notice or the opportunity to respond, the Agency claims that the grievant was given notice of his possible suspension, that he was given 15 days to respond, and that he did respond, through his Union representative.
In response to the Union's argument that the Arbitrator should have compared the grievant to all other FAA employees who had been charged AWOL due to incarceration, the Agency argues that it would be impossible for supervisors, when disciplining their workers, to determine what other supervisors throughout the agency had done in similar situations. The Agency also claims that, while supervisors should adhere to the penalty ranges, they may raise or lower the penalties as circumstances dictate.
IV. Analysis and Conclusions
A. The Award Draws Its Essence From the Agreement
We construe the Union's claim that the Arbitrator failed to consider or correctly apply a provision of the FAA/NATCA agreement in his determination that there was just cause to discipline the grievant as a contention that the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement.
In this case, the Arbitrator interpreted and applied the collective bargaining agreement in concluding that the suspension was for just cause. The Arbitrator found that the grievant did not suffer disparate treatment as compared to other similarly situated employees, and that the penalty was fair and appropriate. Although the Arbitrator did not compare the grievant with other FAA employees who had also been incarcerated, as the Union argues he should have, there is nothing implausible, unfounded, or irrational in the Arbitrator's findings. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). As for the Union's contention that the Arbitrator failed to consider Article 84, Section 3, the Authority has repeatedly held that the fact that an arbitrator's opinion does not mention an issue does not establish that the arbitrator did not consider and rule on the issue. For example, General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1043 (1992). Accordingly, the Agency's contention that the award fails to draw its essence from the agreement does not establish that the award is deficient.
B. The Award Is Not Contrary to Law
As the Union alleges that the Arbitrator's findings regarding procedural due process and MSPB standards are contrary to law, we review those exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Custom Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).
1. The Arbitrator Did Not Err in Failing to Find That the Grievant's Rights of Notice and Opportunity to Respond Were Violated
We construe the Union's claim that the grievant was not accorded his "due process rights" of notice and opportunity to respond, Exceptions at 8, as a contention that the award is deficient because the Arbitrator did not find a violation of the grievant's procedural due process rights. In U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164 (1992), the Authority set out guidelines for the procedural due process that is due a Federal employee who has been suspended for 14 days or less. The Authority held that such employees are not due post-suspension hearings but are due predecisional proceedings no more formal or extensive than those required by Loudermill (oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for employees to present their side of the story) and no less extensive than those required by Goss v. Lopez, 419 U.S. 565 (1975) (an informal discussion where the accused is told what he is being accused of doing, the basis of that accusation, and an opportunity for the accused to present his version of the facts). The grievant was given proper notice of his possible suspension via the letter of September 1, 1995. He was given 15 days in which to respond, more time than the minimum required by Goss. Furthermore, it cannot be said that the grievant did not have an opportunity to respond, because he did respond, through his Union representative. Accordingly, we deny the exception.
2. The Arbitrator Did Not Err in Applying MSPB Standards
In Cornelius v. Nutt the Supreme Court held that, in certain matters (such as disciplinary decisions), arbitrators must "apply the same substantive rules as the [MSPB] does in reviewing an agency . . . decision." 472 U.S. at 660. However, arbitrators are not required to apply the same substantive standards as the MSPB in cases involving suspensions of 14 days or less. See, e.g., American Federation of Government Employees, Local 1770 and U.S. Department of the Army Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 51 FLRA 1302, 1306 (1996). This does not mean that arbitrators are precluded from applying those standards in such cases. U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 211 (1991) (INS, Honolulu). Therefore, the Arbitrator did not err in applying the definition of "similarly situated" that is used by the MSPB.
3. The Arbitrator Did Not Err by Failing to Correctly Apply the Douglas Factors
The Arbitrator was not required to consider the Douglas factors enunciated by the MSPB in deciding the matter before him. The Authority has consistently held that arbitrators are not required to consider the Douglas factors in cases involving suspensions of 14 days or less. American Federation of Government Employees, Local 3887, National Council of Department of Education Locals, Council 252 and U.S. Department of Education, Institutional Review Branch, Office of Student Financial Assistance, Region IV, 48 FLRA 717, 721 (1993). Although the Arbitrator did consider the Douglas factors when he was not required to do so, the Union's contention that he incorrectly applied them does not provide a basis for finding the award deficient. See INS, Honolulu, 41 FLRA at 211-212 (arbitrator's misapplication of the harmful-error rule when he was not required to apply that rule constituted, among other things, the arbitrator's reasoning and did not provide a basis for finding the award deficient). Consequently, we reject the Union's assertion that the award is deficient because the Arbitrator failed to correctly apply the Douglas factors.
C. The Award Is Not Based on a Nonfact
We construe the Union's claim that the Arbitrator erred by applying the penalty for 5 consecutive days of AWOL even though someone worked for the grievant for 3 of those days as a contention that the award is deficient because it is based on a nonfact. To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U