54:0076(11)AR - - NAGE Local R5-188 and Air Force, Seymour Johnson AFB, Goldsboro, NC - - 1998 FLRAdec AR - - v54 p76



[ v54 p76 ]
54:0076(11)AR
The decision of the Authority follows:


54 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R5-188

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

SEYMOUR JOHNSON AIR FORCE BASE

GOLDSBORO, NORTH CAROLINA

(Agency)

0-AR-2921

_____

DECISION

April 29, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Stuart Rothman 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 sustained in part and denied in part a grievance contesting a 3-day suspension. The Arbitrator ordered that the suspension be reduced to two disciplinary reprimands and that lost pay and benefits for the suspension be restored.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a nurse, received a 3-day suspension based on the following charges: (1) abandonment of a patient, as a result of the grievant's inaction when a patient collapsed near her and she did not assist the patient despite being the most highly trained medical professional in the immediate area; and (2) failure to comply with policy not to make negative comments to or in front of patients concerning internal hospital operations, as a result of the grievant's negative remarks to or near patients.

The Agency initially dealt with the charges separately. The Agency's action officer recommended a Letter of Reprimand (LOR) for charge 1 and a 3-day suspension for charge 2. Thereafter, the Agency withdrew the charges and subsequent disciplinary actions, and issued the combined charges with a 3-day suspension as the disciplinary action. In the grievance analysis prepared for the Base Commander, the Agency asserted that even if charge 1 did not justify a 3-day suspension, charge 2 standing alone did justify such and thus, a 3-day suspension for charge 2 carried charge 1 with it.

The grievance was submitted to arbitration and the Arbitrator framed the following issue:

[W]hether the Agency has sustained [the] two charges alleged in the . . . Notice of Proposed Suspension per Article XLI, Section 1 of the Agreement and, if so, was the disciplinary action taken appropriate?

Award at 4.(1)

At the arbitration hearing, the Union argued that the Agency's motivation for the various disciplinary actions was retaliatory because of remarks the grievant had made about a high-level supervisor.

The Arbitrator determined that the two charges should be considered separately.(2) The Arbitrator found that because a medical laboratory technician immediately provided aid to the patient, the patient was not abandoned by the grievant. The Arbitrator concluded that as "[t]he [g]rievant's conduct has not been shown to have been the cause of, directly or indirectly, or contributed in any way to any harm to the patient[,]" the grievant was not negligent. Id. at 9-10. However, the Arbitrator further found that the grievant did not perform in the manner the Agency required, i.e., take responsibility for the situation as the most highly trained medical professional in the immediate area. The Arbitrator also found that the Agency sustained its burden of proof by a preponderance of the evidence on the facts, but only to support a LOR on each charge.

The Arbitrator sustained the grievance in part and denied it in part. He reduced the 3-day suspension for abandonment to a disciplinary reprimand, reduced the 3-day suspension for failure to comply with policy to a disciplinary reprimand, and restored pay and other benefits lost during the suspension. The Arbitrator also found that his award constituted a "split decision" and ordered the parties to equally split the costs of arbitration. Id. at 27. The Arbitrator retained jurisdiction of the case to permit the Union to submit a motion for attorney fees.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator's award is "contrary to law, rule, and regulation." Exceptions at 1. The Union asserts that the Arbitrator exceeded his authority because he sustained the discipline based on the grievant's failure to take responsibility for a situation as the most highly trained medical professional in the area, even though the grievant had not been charged with such conduct. According to the Union, the Arbitrator cannot substitute his own judgment as to what charge should have been alleged by the Agency. The Union argues that, according to Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447, 451 (1986) (AFGE, Local 2798), because the Arbitrator narrowly framed the issues to the two charges set forth in the Notice of Proposed Suspension, he limited his own authority to consider other causes of action.

The Union also asserts that the Arbitrator's determination that the parties are equally responsible for the payment of arbitration fees and expenses is contrary to the parties' agreement.(3) According to the Union, the definition of prevailing party as set forth by 5 U.S.C. § 7701(g) and supporting case law is applicable in this case. The Union claims that it meets the definition of prevailing party and, therefore, should not be responsible for arbitration fees and expenses.(4)

B. Agency's Opposition

The Agency contends Air Force Instruction (AFI) 36-704 requires that the Notice of Proposed Action include the specific reasons for such action. The Agency asserts that the grievant's failure to take responsibility for a situation as the most highly trained medical professional in the area was set forth in the Notice of the Proposed Suspension as one of the reasons for the suspension and, therefore, the award is not contrary to the regulations. The Agency also claims that the Union's contention that the Arbitrator exceeded his authority is without merit because the Arbitrator did not limit his authority in the manner asserted by the Union.

According to the Agency, the parties' agreement permits the Arbitrator to determine the losing party. The Agency contends that there is no evidence that Article XLI, Section 1 of the parties' agreement should be interpreted in accordance with the prevailing party requirement of 5 U.S.C. § 7701(g).

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law, Rule, Or Regulation .

The Union excepts to the award on the basis that it is inconsistent with law, rule, or regulation. However, the Union has not cited any law, rule, or regulation with which the award allegedly conflicts. As such, the Union's exception provides no basis for finding the award deficient. See National Treasury Employees Union, Chapter 231 and U.S. Department of the Treasury, U.S. Customs Service, North Central Region, Chicago, Illinois, 51 FLRA 594, 598 (1995). Accordingly, we deny this exception.

B. The Arbitrator Did Not Exceed His Authority.

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, disregard specific limitations on their authority, or award relief to parties not included within the grievance. See American Federation of Government Employees, Local 22 and U.S. Department of the Navy, Norfolk Naval Shipyard, 51 FLRA 1496, 1499 (1996). The Union has failed to show that the Arbitrator exceeded his authority.

It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington and American Federation of Government Employees, Local 48, Bremerton Metal Trades Council, 53 FLRA 1445, 1449 n.3 (1998) (Member Wasserman dissenting); see also, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996) (Defense Contract Audit Agency). An arbitrator is granted the same broad discretion to fashion appropriate remedies for contract violations. Defense Contract Audit Agency, 51 FLRA at 1164-65.

In the instant case, the record shows that the parties did not stipulate to the issues and the Arbitrator framed the issues to include the "two charges [set forth] in the March 7, 1996 Notice[.]" Award at 4. The Arbitrator found that although the grievant did not abandon a patient, she failed to take responsibility for a medical situation as the most highly trained medical professional in the area. The record indicates that the grievant's failure to take responsibility for the situation was a basis for the charge of abandonment of a patient. See Agency Exhibit 1. Therefore, the basis for the discipline is contained in the charge and the Arbitrator's findings and conclusions are within the scope of the issue as he framed it.

The AFGE, Local 2798 decision, cited by the Union, is distinguishable from this case. In AFGE, Local 2798, an arbitrator framed the issue as whether the agency's action was in violation of the parties' agreement and if so, what remedy was appropriate. The arbitrator found no violation of the parties' agreement, but set forth a remedy. Thus, the arbitrator, by failing to confine his decision and any possible remedy to the issue as he limited it, exceeded his authority. In the case before us, as noted above, the basis for the discipline is contained in the charge and the Arbitrator's findings and conclusions are within the scope of the issue as he framed it. Accordingly, we deny the exception.

C. The Award Draws Its Essence From The Parties' Agreement.

We construe the Union's argument that the Arbitrator's determination regarding the payment of arbitration fees and expenses by both parties is contrary to the parties' agreement as a contention that the award fails to draw its essence from the parties' agreement.

In order for an award to be found deficient because it does not draw its essence from the 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 United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). The Union has failed to establish that the Arbitrator's award is irrational, unconnected to or in manifest disregard of the parties' agreement.

While Article XLIII, Section 4 indicates that the arbitrator's fees and expenses shall be paid by the losing party, it also specifies that the arbitrator shall determine the losing party. Moreover, it states that, "[i]f there is a split decision in which neither party can be designated as the losing party, the costs shall be borne equally." The Arbitrator specifically found that this was "a split decision and the costs of the arbitration shall be borne equally by the parties." Award at 27. Thus, the Arbitrator's award, given his findings, is not unconnected to the wording or purpose of the parties' agreement.

The Union's argument that the definition of a prevailing party under 5 U.S.C. § 7701(g) and supporting case law is applicable in this instance is unpersuasive. The standard set forth under 5 U.S.C. § 7701(g) specifically refers only to attorney fees. 5 U.S.C. § 7701(g)(1). There is no mention of arbitration fees or expenses in 5 U.S.C. § 7701(g). There is no evidence to indicate that the parties intended to apply the prevailing party standard in 5 U.S.C. § 7701(g) to their agreement. It is well established that the question of interpretation and application of the parties' agreement is a question solely for the arbitrator, as it is the arbitrator's construction of the agreement for which the parties have bargained. General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1044 (1992).

Consequently, the Union has not established that the Arbitrator's award fails to draw its essence from the agreement, and we deny the exception.

V. Decision

The Union's request to remand the issue of attorney fees to the Arbitrator is denied. As the Union has not demonstrated that the award is deficient, the exceptions are denied.




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

1. Article XLI, Section 1 of the parties' agreement provides, in pertinent part, that "disciplinary and adverse actions will be taken for such cause as will promote the efficiency of the service and will be supported by a preponderance of the evidence. . . ."

2. The Union filed limited exceptions pertaining only to the portion of the Arbitrator's award addressing the abandonment charge and the payment of Arbitrator's fees and expenses as related to the suspension. As no exceptions were filed regarding other portions of the award, those portions are not before the Authority for consideration.

3. Article XLIII, Section 4 of the parties' agreement states in pertinent part:

All fees and expenses, if any, of the arbitrator shall be borne by the losing party. The Arbitrator shall determine the losing party. If there is a split decision in which neither party can be designated as the losing party, the costs shall be borne equ