U.S. Department of Defense, Hale Koa Hotel and Service Employees International Union, Local 556
[ v55 p651 ]
55 FLRA No. 112
U.S. DEPARTMENT OF DEFENSE
HALE KOA HOTEL
SERVICE EMPLOYEES INTERNATIONAL UNION
July 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joyce M. Najita filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The award upheld the imposition of discipline against the grievant, but ordered that a 5-day suspension be reduced to a 1-day suspension. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant engaged in a heated dispute with his supervisor concerning the work to be done on a particular day.As a result, the grievant was suspended for 5 days for an "insubordinate response to instructions and abusive language" towards a supervisor. Award at 2-3. The Arbitrator framed the issue to be resolved as follows: "Whether there was just cause to impose the 5-day suspension. If not, what shall the remedy be?" Id. at 1.
The Arbitrator found that the grievant did not willfully and deliberately defy his supervisor's authority, but that he did react in a "rash, uncontrolled, highly emotional manner, which is found to be an unacceptable response to supervisory authority." Id. at 4-5. The Arbitrator concluded that the grievant was "clearly insubordinate in violation of the [Agency's] Guidelines[.]" Id. at 7.
In assessing whether a 5-day suspension was appropriate, the Arbitrator stated that the Agency had adopted the principle of progressive discipline. Id. at 5. In addition, the Arbitrator stated that, as a matter of "due process," the Agency should have clearly set forth the charges of alleged misconduct so that employees could understand what misconduct was alleged and, thereby, avoid it in the future. Id. at 7. She noted that the grievant's record contained at least 11 other disciplinary actions, including a 3-day suspension. Id. The Arbitrator found that the rationale for the previous 3-day suspension was not explained, but that, based on the penalties listed in the Agency's Guidelines, she could "only surmise" that it was "[f]ighting or creating a disturbance resulting in an adverse effect on morale, production, or maintenance of proper discipline[.]" Id. The Arbitrator stated that in the situation resulting in the suspension before her, the grievant did not engage in "fighting." Id. Accordingly, she found that the Agency erred when it determined that the grievant's misconduct was the second occurrence of fighting. Id.
Based on the foregoing, the Arbitrator mitigated the discipline to a 1-day suspension, a penalty enumerated for a first occurrence of insubordination under the Agency's Guidelines.
III. Positions of the Parties
The Agency asserts that the Arbitrator's award is deficient under section 7122(a)(1) of the Statute because it conflicts with an Agency regulation, specifically the Agency Guidelines. The Arbitrator's award, according to the Agency, treats the selection of a disciplinary penalty under the Agency's Guidelines as an automatic, mechanical process. The Agency maintains that this is in violation of provisions in the Guidelines establishing that the table of penalties is to be applied in a discretionary manner.
The Agency also argues that the award is based on a nonfact because the Arbitrator misapprehended the meaning of "offense" and improperly characterized the instant misconduct as a first offense. Exceptions at 4. The Agency contends that the applicable table of penalties contains explanatory material that "clearly allows for other similar offenses to be considered, not just repeated offenses[.]" Id. at 5 (emphasis in original). [ v55 p652 ] Additionally, the Agency contends that the Arbitrator's finding that the grievant's prior misconduct (action akin to fighting) and instant misconduct (insubordination and abusive language) constituted two different offenses is a nonfact.
The Union contends that the Agency has not met its burden of establishing that the Arbitrator was "clearly erroneous" in concluding that the prior 3-day suspension was based upon fighting and in distinguishing it from the basis of the instant misconduct, which was determined to be insubordination. Opposition at 5.
IV. Analysis and Conclusions
A. The award draws its essence from the collective bargaining agreement.
The Agency contends that the award failed to conform to regulation because it conflicts with the Agency's Guidelines, which constitute an Agency regulation.
It is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. See National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 52 FLRA 1522, 1526 (1997) (NAGE Local R4-6). In this case, the parties' agreement incorporates the Agency's regulation that includes the table of penalties. See 52 FLRA at 1523 n.2 (Authority found that parties' agreement stating that administrative leave would be granted "in accordance with applicable law and  regulations" incorporated the agency's regulation). Consequently, the issue before the Authority is whether the award is deficient as failing to draw its essence from the parties' agreement under section 7122(a)(2) of the Statute, and, accordingly, we will analyze this exception as a claim that the award fails to draw its essence from the parties' agreement.
To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement, or (4) evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
The Agency contends that the Arb