United States Department of the Air Force, Davis-Monthan Air Force Base, Tucson, Arizona (Agency) and American Federation of Government Employees, Local 2924 (Union)

[ v63 p241 ]

63 FLRA No. 89

UNITED STATES
DEPARTMENT OF THE AIR FORCE
DAVIS-MONTHAN AIR FORCE BASE
TUCSON, ARIZONA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2924
(Union)

0-AR-4168

_____

DECISION

April 21, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Barbara Bridgewater filed by the Agency under § 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.

      A grievance was filed concerning a disciplinary action administered by the Agency to the grievant who is a member of the bargaining unit. The Arbitrator determined that the Agency's disciplinary action was not for just and sufficient cause, and reduced the grievant's three-day suspension to a written reprimand. For the reasons set forth below, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievant, an Aircraft Mechanic, lost a tool and reported it missing four days later. Award at 4. This incident resulted in a three-day search for the tool and the impoundment of three aircraft. Consequently, the grievant was suspended for "Careless Workmanship - failure to perform proper tool inventories." Id. at 2, 4. A grievance concerning the suspension was filed under the parties' Labor Management Relations Agreement (LMA), and when it was not resolved, the Union invoked arbitration.

      The parties could not agree on an issue at arbitration, and the Arbitrator framed the issue as follows: "Was there just and sufficient cause for the [three]-day suspension of [the grievant], and was the discipline timely? If not, what is the appropriate remedy?" Id. at 2.

      As relevant here, at arbitration the Agency claimed that its three-day suspension of the grievant was warranted under the Douglas factors and the Agency's table of penalties. [n1]  Id. at 8. In response, the Union claimed that the Agency failed to meet its burden of proving that its disciplinary action against the grievant was for just and sufficient cause. Id. at 12. Specifically, the Union contended that the grievant's discipline was not consistent with discipline imposed on other employees for similar infractions. Id. at 13.

      As the grievant admitted that he failed to perform the required tool inventories around the time that the tool was lost, the Arbitrator concluded that it was reasonable for the deciding official to administer a three-day suspension to the grievant. Id. at 16-17. The Arbitrator determined that the potential penalty under Air Force Instruction (AFI) 36-704 for Careless Workmanship ranged from reprimand to removal. Id. at 17. The Arbitrator also determined that the deciding official thoroughly considered all of the facts and circumstances of the grievant's offense, including his state of mind at the time of the infraction due to his father's failing health, his thirty-three years of federal service, and his consistently positive performance appraisals. Id. at 17, 19. In addition, the Arbitrator found that the deciding official properly considered the Douglas factors, the AFI, laws, rules, and regulations in administering the discipline. Id. at 17.

      Although the Arbitrator found that the disciplinary action fell within the applicable guidelines, he ultimately concluded that it was not for just cause because the grievant was treated differently than another employee who had similarly lost a tool but, instead of being disciplined, received only a notation in his file recording the incident. Id. at 17-18. In so concluding, the Arbitrator found that, even though the circumstances surrounding the two incidents varied, both employees had been found "guilty" of violating the same tool inventory procedures and had been treated differently. Id. at 18-19. For this reason, the Arbitrator found that the grievant "was not treated in a fair and equitable [ v63 p242 ] manner" as required by Article 28, Section 1 of the parties' LMA, and thus determined that there was not just and sufficient cause to suspend the grievant for three days. [n2]  Id. at 19-20. Consequently, the Arbitrator ordered that the three-day suspension be reduced to a written reprimand. Id. at 20.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award is based on a nonfact because the Arbitrator's conclusion that the grievant suffered from disparate treatment was based on her erroneous determination that another employee had similarly lost a tool but received a less severe disciplinary action than the grievant. Exceptions at 5-6. According to the Agency, the two incidents are not similar enough to compare the disciplinary action resulting from each one. Id. at 10-11 (citing Brooks v. Dep't of Homeland Security, 2006 MSPB LEXIS 4118 (Oct. 24, 2006); Gaskins v. Dep't of Air Force, 36 MSPR 331 (1988); Carroll v. Dep't of Health and Human Servs., 703 F.2d 1388 (Fed. Cir. 1983)). In this regard, the Agency claims that the evidence presented shows that the only similarity between the two incidents is that both involve employees who lost tools. Id. at 10. The Agency contends that the two incidents are dissimilar because they involved different chains of command and required a different response by the Agency. Specifically, the Agency argues that its suspension of the grievant was for just cause because the consequences of the incident involving the grievant were much more serious than those resulting from the incident involving the other employee charged with losing a tool. Id. at 11, 15-16. The Agency also notes that the deciding official stated that "in his 30 years of aircraft maintenance experience he does not recall three aircraft being impounded for this type of situation." Id. at 11 (citing Transcript (Tr.) at 76).

      The Agency also claims that the award fails to draw its essence from the agreement because it does not comply with the requirements of Article 28, Section 1. Id. at 11-13 (citing Soc. Sec. Admin., Lansing, Mich., 58 FLRA 93 (2002) (SSA, Lansing) (then-Member Pope dissenting) (Authority set aside award inconsistent with parties' collective bargaining agreement); Soc. Sec. Admin., St. Paul, Minn., 61 FLRA 92 (2005) (SSA, St. Paul) (then-Member Pope dissenting); Soc. Sec. Admin., 59 FLRA 257 (2003) (then-Member Pope dissenting in part)). In this regard, the Agency argues that "the Arbitrator is required to follow the [LMA]" and "Article 28, Section 1 requires the discipline to be in compliance with law[,] rule[,] and regulation." Id. at 14. Specifically, the Agency claims that the Arbitrator "failed to follow" Article 28, Section 1 because the Agency properly applied the table of penalties and the Merit Systems Protection Board's (MSPB) Douglas factors in determining the appropriate penalty in the grievant's case. According to the Agency, such penalty determinations are entitled to deference when they are reasonable. Id. 14-15. The Agency argues that "[a] reprimand could not be considered to be even any kind of a plausible interpretation of the [LMA] and could not be derived from following applicable laws, rule[,] and regulations as the parties had agreed to in Article 28, Section 1." Id. at 16

      The Agency also asserts that the Arbitrator's conclusion that there was not just and sufficient cause for the three-day suspension is contrary to law. In this regard, the Agency contends that the Arbitrator did not consider the correct factors in determining whether an employee has suffered from disparate treatment. Id. at 10-11. Specifically, the Agency claims that the grievant's penalty was considered in accordance with the Douglas factors and fell within the Agency's table of penalties, which allow for a penalty ranging from a reprimand to a removal in this circumstance. Id. at 14. According to the Agency, penalty determinations are entitled to deference when they are reasonable. Id. 14-15.

B.      Union's Opposition

      The Union contends that the Agency has not demonstrated that the award is based on a nonfact. Specifically, the Union claims that the Agency has not shown that the lost tool incident resulting in a reprimand cited by the Arbitrator is substantially different than the incident involving the grievant. Opposition at 6. The Union also claims that the Agency's nonfact exception represents a mere difference of opinion by the Agency regarding the Arbitrator's analysis of the facts and does not provide a basis for finding the award deficient. Id. at 7.

      [ v63 p243 ] The Union also argues that the award draws its essence from the agreement, as it presents a plausible interpretation of the LMA, and is "founded in reason and fact and entirely connected with the wording and purposes of the [LMA]." Id. at 10. In addition, the Union contends that the Agency's disciplinary action against the grievant did not comply with Article 28, Section 1 of the LMA because it "was not solely for the purpose of rehabilitation" and the grievant "was not treated fairly and equitably[,]" as required by that provision. Id. at 9.

      In addition, the Union claims that the Arbitrator correctly found that the disciplinary action was not for just cause because the grievant was subjected to disparate treatment since another employee had similarly lost a tool on an aircraft and was subjected to less-severe disciplinary action than the grievant. Id. at 11. In this regard, the Union argues that the Arbitrator correctly applied the MSPB standard in finding that the Agency's disciplinary action against the grievant was not for just cause because the grievant was treated substantially different from another employee who had similarly lost a tool. Id. The Union argues that the two employees were penalized differently for the same infraction, even though both employees worked under the same command, operated under the same instructions, worked in equivalent positions of trust and responsibility, and failed to immediately report the missing tool. Id. at 15. Therefore, the Union argues that, since the Agency failed to provide evidence justifying the disparate treatment, the Arbitrator correctly changed the grievant's penalty so that it was consistent with the similarly-situated employee. Id. at 14.

IV.     Analysis and Conclusions

A.     The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000) (Local 1984). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id. In addition, an arbitrator's conclusion that is based on an interpretation of the parties' collective bargaining agreement does not constitute a fact that can be challenged as a nonfact. See NLRB, 50 FLRA 88, 92 (1995).

      The Agency contends that the award is based on a nonfact because the evidence presented at arbitration did not support the Arbitrator's conclusion that the grievant was subjected to disparate treatment. The Union claims that the Agency has not demonstrated that the grievant was not subjected to disparate treatment. The Arbitrator's determination that the grievant was subjected to disparate treatment was based on his factual finding that the grievant's infraction was substantially similar to that of another employee who was less-severely punished than the grievant for losing a tool. In concluding that the two lost tool incidents were similar-enough to find that the grievant was subjected to disparate treatment, the Arbitrator relied on the grievant's testimony pertaining to an incident in which another employee lost a tool, Union Ex. 3, (which documented that incident), and the 2005 Lost Tool Trend Analysis. Award at 18-19. The record does not reflect that the Agency presented any evidence showing that the two incidents were substantially different. As the Agency's nonfact argument relies on the Arbitrator's factual determination that was disputed at arbitration, it has not demonstrated that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. Local 1984, 56 FLRA at 41. Consequently, we deny the exception.

B.     The Arbitrator's award does not fail to draw its essence from the agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998) (AFGE). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      As the Authority has recognized, the enforcement of a contractual just cause standard presents two questions: whether discipline was warranted, and if so, whether the penalty assessed was appropriate. See, e.g., United States Dep't of Justice, Immigration & Naturalization [ v63 p244 ] Serv., New York Dist. Office, 42 FLRA 650, 658 (1991). Here, the Arbitrator's determination that discipline was warranted is not disputed. Rather, the Agency challenges the Arbitrator's assessment of the penalty, claiming that the award fails to draw its essence from the agreement. In doing so, the Agency cites SSA, Lansing, 58 FLRA 93, and SSA, St. Paul, 61 FLRA 92, two cases in which arbitration awards were found deficient on essence grounds because the arbitrators did not administer disciplinary action consistent with the parties' agreements. See SSA, Lansing, 58 FLRA at 95 (then-Member Pope dissenting) (award failed to represent a plausible interpretation of the agreement because, even though the arbitrator found that the agency had just cause to discipline the grievants, he did not administer any form of disciplinary action provided under the parties' agreement); see also SSA, St. Paul, 61 FLRA at 94 (then-Member Pope dissenting) (award exhibited a manifest disregard for the agreement where it imposed the least serious form of discipline possible under the parties' agreement in the case of a serious infraction and the agreement allowed management to bypass its progressive discipline policy in favor of more stringent discipline in cases of serious infractions). Here, the Arbitrator found that the grievant was not treated in a fair and equitable manner as required by Article 28, Section 1 of the LMA, and that thus, there was not just cause for the three-day suspension. In contrast to the cases cited by the Agency above, the Arbitrator mitigated the disciplinary action to a written reprimand, which is an allowable penalty under Article 28, Section 4 of the LMA. [n3]  Award at 19-20.

      The Authority applies a deferential standard of review to arbitrators' interpretations of parties' agreements, AFGE, 54 FLRA at 159, and the text of the LMA specifically provides for the mitigated disciplinary action that was ordered by the Arbitrator. Moreover, the Agency has not offered any evidence showing 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See OSHA, 34 FLRA at 575. As such, the Arbitrator's award is not deficient as failing to draw its essence from the parties' agreement. Rather, the Arbitrator's mitigation of the Agency's disciplinary action represents a plausible interpretation of the LMA, as a written reprimand is within the parameters of disciplinary action provided for by the LMA. Thus, the Agency's exception is denied. [n4] 

C.     The Agency's argument that the award is contrary to law is a bare assertion.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Intertwined with its arguments that the award is based on a nonfact and that the Arbitrator's award fails to draw its essence from the collective bargaining agreement, the Agency also states that the award is contrary to law. Exceptions at 4, 11. However, the Agency does not otherwise support this contention. "`A general assertion, absent more, is not sufficient to support a contention that an award is contrary' to law." NFFE, Local 1442, 61 FLRA 857, 859 (2006) (quoting United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 489, 492 (2001) (citation omitted)). In the absence of any argument showing that the award is contrary to a specific law or regulation, the Agency's argument constitutes a bare assertion that is insufficient to establish that the award is deficient. See AFGE, Local 217, 60 FLRA 459, 460 (2004) (union exception denied as bare assertion where it provided no argument as to how award violated cited regulation). [ v63 p245 ] Accordingly, as this exception constitutes nothing more than a bare assertion, it must be denied.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 63 FLRA No. 89 - Authority's Decision

   The Douglas factors are the rules developed by the Merit Systems Protection Board (MSPB) for evaluating whether a particular disciplinary action should be mitigated. See Douglas v. Veterans Admin., 5 MSPB 313 (1981).


Footnote # 2 for 63 FLRA No. 89 - Authority's Decision

   Article 28, Section 1 states in pertinent part:

Section 1. Disciplinary action is a responsibility of the Employer. Disciplinary actions must be based on just and sufficient cause with emphasis on sound employee-management relations. The Employer recognizes that the prime objective of disciplinary action is rehabilitation, not punishment. Discipline and adverse actions, when applied will be in accordance with law, rule regulation, and this Agreement. In all aspects, employees will be treated fairly and equitably.

Award at 2 (citing LMA, Article 28, Section 1).


Footnote # 3 for 63 FLRA No. 89 - Authority's Decision

   In listing appropriate disciplinary actions, Article 28, Section 4(b) specifically provides for reprimand, providing in pertinent part:

For the purposes of this agreement, disciplinary action includes oral admonishment, reprimand, and suspension of 14 days or less.

Award at 3 (citing LMA, Article 28, Section 4).


Footnote # 4 for 63 FLRA No. 89 - Authority's Decision

   Chairman Pope notes that Member Beck distinguishes the Authority's decisions in SSA, St. Paul and SSA, Lansing based on the facts: in this case the Arbitrator mitigated the grievant's discipline to an action that is specifically mentioned in the parties' agreement. Chairman Pope also notes her agreement that the facts are distinguishable. However, for the reasons set forth in her dissenting opinions in SSA, St. Paul and SSA, Lansing, Chairman Pope affirms that, in her view, arbitrators are authorized both to determine whether particular disciplinary actions are for just cause and to mitigate such actions as appropriate